Legal Protection For Building Rights Title

Settlement of Land Disputes in Indonesia

Every land case submitted to the National Land Agency of the Republic of Indonesia (Badan Pertanahan Nasional Republic Indonesia or BPN RI) is carried out the management of the assessment and handling of land cases because it is one of the functions of BPN RI to overcome disputes, conflicts, and land issues to realize the land policy for justice and welfare of the community.

Land Cases are disputes, conflicts, or land affairs submitted to the National Land Agency of the Republic of Indonesia to obtain settlement measures in accordance with the provisions of national legislation and/or land policies. A land dispute is a land dispute between an individual, a legal entity, or an institution that has no widespread socio-political impact. Land Conflict is a land dispute between an individual, group, group, organization, legal entity, or institution that has a tendency or has a broad socio-political impact. Land Case is a land dispute whose settlement is carried out by a judicial institution or a judicial decree still pending the handling of its dispute with the National Land Agency of the Republic of Indonesia.

Legal Aid and Legal Protection of Land Dispute Resolution

Legal Assistance is conducted by Legal Aid Team consisting of BPN officer/officer from Deputy Element, Legal and Public Relations Center of BPN RI, Regional Office of National Land Agency and/or Land Office. The case of land arises because of the claims/complaints/objections from the public (individual/legal entity) containing the truth and claim to a decision of State Administration in the field of land that has been determined by the State Administrative Officer in the National Land Agency, as well as the decision of the Official Are perceived as detrimental to their rights to a plot of land.

With the claim, they want to get an administrative settlement with the so-called corrections of the Official Authority. The authority to make corrections to a State Administrative Decree on land affairs (certificates/Decree on Land Rights), shall be the Head of the National Land Agency. Land cases include several issues, such as land title, ownership issue, acquisition proof issue on which the rights are granted and so on. Upon receipt of complaints from the above-mentioned public, the competent authority resolving the matter will conduct research and data collection on the complained file. From the results of this study can be concluded while whether the complaint can be processed further or cannot. If the data submitted directly to the National Land Agency is still unclear or incomplete, then the National Land Agency will request an explanation accompanied by data and advice to the Head of Regional Office of the Provincial National Land Office and Head of the local Regency/City Land Office the location of the disputed land.

When the completeness of the data has been fulfilled, then subsequent re-examination of the proposed problem that includes aspects of procedures, authority, and application of the law. In order that the interest of the community (individual or legal entity) entitled to the claimed land area is protected by law, it is deemed necessary after the head of the local Land Office conducts research and if from his belief the quo should be observed. This policy is put forth in the Circular Letter of Head of National Land Agency dated 14-1-1992 No. 110-150 concerning Revocation of Instruction of the Minister of Home Affairs No. 16/1984.

With the revocation of Instruction of the Minister of Home Affairs No. 16/1984, the attention of the National Land Agency Officials in the regions, namely the Heads of Regional Offices of the Provincial Land Agency and Head of the Regency/City Land Office, in order to determine the status quo or blocking, if there is a determination of Confiscation of Warranty from the Court. (Compare with Regulation of the Minister of Agrarian Affairs / Head of National Land Agency No. 3 of 1997 Article 126).

Therefore, it can be concluded that if the Head of the local Land Office wishes to take a status quo action against a State Administrative Decree on Land Affairs (certificate/Decree on Land Rights), it should act cautiously and pay attention to the general principles of the Government Good, among others, the principle of precision and thoroughness, the principle of openness (fair play), the principle of equality in serving the interests of society and pay attention to the parties to the dispute. Against land affairs submitted to the National Land Agency for the sake of resolution, if it can be met by the parties to the dispute, then it is very good if settled by way of deliberation. These settlements are often the National Land Agency requested as mediators in settling land rights disputes peacefully mutual respect for the parties to the dispute.

In this regard, if the settlement by consensus reaches the word consensus, it must also be accompanied by written evidence, namely from the notice to the parties, the minutes of the meeting and subsequent proof of peace is poured out in the deed which, if necessary, before the notary so that it has the power Perfect proof. The cancellation of state administrative decisions on land affairs by the Head of the National Land Agency based on the existence of legal/administrative flaws in its issuance.

In practice, so far there are individuals / legal entities who feel their interests are impaired to submit the objection directly to the Head of National Land Agency. Mostly submitted directly by the concerned to the Head of the National Land Agency and partly submitted through the Head of the local Regency Land Office and forwarded through the Head of the Regional Office of the National Land Agency of the Province concerned.

Solutions Through Mediation

In addition to dispute resolution, conflicts and cases through courts/litigation, within the national legal system known dispute settlement through non-judicial institutions as stipulated in Law No. 30/1999 on Arbitration and Alternative Dispute Settlement. One alternative dispute resolution (land) is through mediation efforts. Mediation as an alternative dispute resolution offers a typical dispute resolution way. The Alternative Dispute Resolution (ADR) is the “non-conventional” peaceful method of resolving disputes over a conflict situation because it is least expensive methods, and can satisfy the parties, and preserve relationships after a settlement might have been reached (Best, 2006; Ugwu, Anthony, & Enna, 2015).

Mediation can be understood as a process (formal or informal) in which a third party, called a mediator, facilitates management of the conflict without having the authority to impose a solution (Yasmi Kelley, Enters, 2010; Dhiaulhaq et al., 2014). According to Dhiaulhaq et al., (2014) that the process of mediation in the two sites was complex, but can be categorized into three main phases: pre-mediation (the mediator prepares the necessary conditions to ensure the success of the subsequent phases), mediation (getting agreement on the mediation stages, agenda and ground rules in the mediation process continued by identifying and clarifying the issues and interests of the parties) and post-mediation phase (The mediation brought several positive outcomes including not only significant reduction in the tension between the parties and achievement of the agreement but also the improvement of the social relationship between plantation companies and communities, development of mutual recognition and respect, as well as empowerment of the parties to find a sustainable solution). The success of the mediation is determined by the goodwill of both parties to jointly find an agreed solution.

Efforts to achieve a win-win solution are determined by several factors including an objective approach to the source of the dispute more acceptable to the parties and providing mutually beneficial results with the notion that the approach should focus on the interests that are the source of the conflict. In addition, a balanced ability factor in the negotiation process or deliberation. Differences in bargaining ability will cause an emphasis by one party against another. The choice of dispute resolution through mediation has advantages in terms of cost, time, and mind compared to court litigation, in addition to the lack of confidence in the independence of the judiciary and the administrative constraints that surround it make the judiciary the last resort for dispute settlement.

In order for the agreement to be executed (final and binding), the parties shall include the agreement in the form of a written agreement subject to the general principles of the agreement. Given that the Indonesian nation is known for solving problems through deliberation to reach consensus, presumably, the utilization of mediation institution can be a positive alternative for the settlement of land disputes.

Solutions Through Court

Disputes to the courts are the last resort, as most are solved through various conflict resolution mechanisms (e.g. the intervention of customary authorities or local administrative authorities); in addition, some perpetual conflicts have never been taken to court due to lack of funds (Benjaminsen, Alinon, Buhaug, & Buseth, 2012). Court cases are expensive, mainly due to bribes to be paid by the parties to judges and their entourage (Benjaminsen & Ba, 2009).

In Indonesia, if dispute resolution between parties is not achieved, so if the unilateral resolution of the Head of the National Land Agency cannot be accepted by the parties to the dispute, the settlement must go through the courts. After going through the research, the State Administrative Decree issued by the National Land Agency Officer is correct according to the law and in accordance with the applicable procedure, the Head of the National Land Agency may also issue a decision which refuses the third party's claim against the State Administration Decision Has been issued by the National Land Agency Official. As a consequence of such rejection means that the said Administrative Decision is still true and valid even though there is another party who filed a local court.

While awaiting a judicial ruling with permanent legal force, it is prohibited for the relevant State Administration Officer to hold a mutation of the land concerned (status quo). Therefore, to avoid the occurrence of problems in the future that cause harm to the parties who litigation and third parties, then to the State Administrative Officer in the field of land associated must apply the general principles of good governance, namely to protect all parties Concerned while awaiting a verdict which has had a permanent legal force (in kracht van gewijsde).

Then, if there is a verdict of a judge that has a definite legal force, then the Head of the local Land Office of the Regency/City through the Head of the Regional Office of the National Land Agency of the Province concerned shall propose a request for the cancellation of a Decision of State Administration in the Land Affairs decided above. The application shall be accompanied by a report on all data concerning the subject and the burden present on the land and any problems. The administrative authority of the request for cancellation of a Letter of Land Rights or Land Rights Certificate shall be the authority of the Head of the National Land Agency, including the policy measures to be taken with regard to an unenforceable judgment. All this to be submitted to the Head of the National Land Agency to consider and make further decisions.

Settlement of Land Disputes in Indonesia

The cause of land disputes, usually starting from the handling of issues that are less precise or incomplete in the past. Given the rising land prices, many claims to be landowners even without the evidence of strong and clear ownership. Issues become more complicated when the intervention of a third party is not in good faith. Problems will be difficult to solve if the parties feel the right and do not want to deliberate. The disputed land issues include the object of the land, the boundaries, and the extent, the status of the land, the subject matter, the burdening rights, and the transfer of rights and so on. In relation to Government or private agencies, it is usually the case concerning the appointment of the location and the determination of its extent, disposal or exemption, land discharge, compensation or other benefits, the annulment of its rights and the revocation of its rights. If identified, land issues include problems of cultivating the people over forest areas, violation of land reform provisions, access to land for development, civil disputes and community claims on customary land rights, both custom and individual. Another cause is the lack of understanding of land laws and regulations.

Legal Aid and Legal Protection of Land Dispute Resolution

Against land dispute submitted to the court, there are two things to note. First, the courts are often considered ineffective and efficient and secondly, the quality of the decisions is questionable. From court litigation experience is not simple and time-consuming. In addition to organizational constraints, non-juridical interference makes court decisions often questionable. The condition raises the idea of the need to establish a special court to examine and adjudicate land issues. In addition to civil disputes already handled by the General Court and if involving state officials have been handled by the State Administrative Court. Due to the various obstacles experienced by justice seekers in court in court, it is time to take a relatively simple alternative (not litigation) dispute resolution, shorter time and lower cost. This model is called Alternative Dispute Resolution (ADR). The familiar forms of ADR in Indonesia include mediation, arbitration, conciliation, and negotiation. Of the various types of ADR, which is more suitable to be applied in the field of land is mediation. This choice is based on consideration because the structure and mechanism are simpler. Besides, for the Indonesian people who uphold the principle of deliberation to reach consensus, this institution feels familiar. And lately, the means used by the National Commission on Human Rights in resolving various disputes also utilize the principles of mediation.