Indonesian Supreme Court issued Supreme Court Circular Letter No. 10 of 2020 concerning Enforcement on Resolution of Supreme Court Chamber Plenary Meeting in 2020 as Implementing Guidelines of the Court Duties (“SEMA 10/2020“). From the civil chamber section, SEMA 10/2020 provides guidance related to a land dispute. Therefore, comprehension of this guidance will indeed support real estate companies to mitigate the risk of performing business.
Motion on “Plurium Litis Consortium” or Lack of Parties in a Lawsuit
If a civil claim on land ownership does not involve the land seller, the motion on lack of parties cannot be granted if the disputed land certificate is (i) already registered under the seller’s name and (ii) the sale and purchase agreement signed before the land conveyancing officer. Nevertheless, if the disputed land certificate is (i) not yet registered under the seller’s name and/or (ii) the sale and purchase agreement made privately, the motion on lack of parties can be granted.
Land Occupation during Inspection
According to Indonesian trial procedures, it is possible to carry out an on-site inspection as regulated under Article 153 HIR and Supreme Court Circular Letter No. 7 of 2001 concerning on-site inspection (“Inspection“). The Inspection aims to achieve certainty regarding the location, measurement, and boundaries of the disputed object.
Under SEMA 10/2020, If the court discovers another party that occupies the disputed land during the Inspection and the plaintiff does not involve the said party in the civil claim, the plaintiff claim constitutes as “lack of parties claim” (gugatan kurang pihak). This condition only applies that (by common sense) the plaintiff knows or at least should know that there is another party occupying the disputed land.
National Land Agency as Defendant on Double Certificate Dispute
In the event, the plaintiff requests the court to carry out particular legal action towards a land certificate in a conflicting land certificate dispute (or double certificate or sertipikat ganda). In that case, the National Land Agency shall be involved as a party to the dispute. Otherwise, If the plaintiff does not request the court to carry out particular legal action towards a land certificate, the plaintiff doesn’t have to involve the National Land Agency as the party to the dispute.
Annulment of Land Certificate
SEMA 10/2020 states that civil court judges do not have the power to decide an annulment of a land certificate. The civil court judges may only declare that the land certificate does not legally binding, provided that it is proven that the entitlement of land certificate is not valid. Furthermore, the administrative court may conduct the land certificate annulment since it is deemed an administrative action.
Sale and Purchase Deed as Proof of Payment
Deed of sale and purchase land (“Deed”) applies as evidence of sale and purchase object as long as it is firmly stated that the Deed constitutes as payment evidence.
Nominee Agreement
Although the land has been purchased using the money, asset, or property of a foreign citizen or other parties, the party whose name is stated on the land certificate is deemed the lawful owner.
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Dianyndra K Hardy, Jurisdito Hutomo H
“SSA Advocates’ solid footing in the Indonesian legal market can be attributed to its dispute resolution and restructuring and insolvency work. Suhardi Somomoeljono is a key contact.”
