Right of ownership (Hak Milik) is the most complete form of individual right on land. It gives the holder the right to use land including the earth underneath, and also the water and air above it, so long as they are directly required in connection with the use of the land. As a long the Regional Government has not yet established a plan for use of land in the area concerned, the land owner is free to decide how the land will be used.
He can construct houses or buildings upon it, or use it for agricultural fishing and breeding purpose, etc. However, the Regional Government has power to regulate the use of land. If a plan has been established for use of land in the area, the ownerâs use of his land would be restricted by the said plan.
Right of ownership to a piece of land does not include the right to obtain the wealth underneath the earth. To exploit these natural recourses, a person is required to own certain mining rights as regulated in the minning regulations.
Right of ownership has no time limit. The land owner is entitled to convey the use of his land to another party, by granting â secondary rightsâ on the land. He may also transfer his right to another party. In the event of death, his land can be inherited by his legal heirs. It can also be conveyed as security for a debt. Moreover, the owner is entitled to release his right and give it away for general benefit.
Right of ownership belongs to that class of titles on land which mus be registered. The land owner is given a legal document as evidence of his rights, officially known as a certificate (sertifikat).
In principle right of ownership may be owned only by Indonesian nationals, whether authochthonous Indonesian nationals or Indonesian nationals of foreign descent. Foreigners are prohibited to own rights of ownership expect in special circumstances and for limited periods of time.
Usually, the Government will grant foreigners only the rights of use ( hak pakai ) or the right to rent land ( hak sewa ) owned by another party.
Foreigners who have obtained right of ownership on land by way of non-testamentary succession or joint-property based on marriage, and Indonesian nationals who have right of ownership but subsequently loose their nationality, are permitted to possess right of ownership. However, they are obliged to release their right of ownership within one year, by transferring the right to another qualified party or by submitting a request to the government to convert their right of ownership into a right of use.
These restrictions also apply to Indonesian nationls who have a dual nationality.
According to the land reform regulations, the owner of agricultural land should have his dwelling place in the district wherein the sad land is located, or in a district which borders on that district. Certain persons are permitted to own land as an âabsenteeâ owner, for example, government officials and members of the armed forces while they are still actively in the service. However, the area of agricultural land which they may own as an absdentee owner is limited to 2/5 of the maximum area otherwise permitted under the land refir regulations.
In principle, corporations are not permitted to own rights of ownership on land. The government assumes that the need of a corporation to possess land can be fulfilled by granting it lesser right on land. For corporations which operate in the religious or social field, right of use is considered the most suitable. Considering that the economic position of foreigners, and corporations in general, is strong, it is feared that if corporations were free to obtain right of ownership, a large quantity of land belonging to the people would fall into the possession of these parties.
Corporations which may be permitted to own land are:
To possess land with right of ownership, these corporation must comply with various special Provisions in the above regulation, particularly in regard to land use and areal limitations.
Special treatment of the religious and social bodies is in conformity with the Basic Agrarian Law.
The area of agricultural land which may be owned by a person (including land owned by the wife/husband and children who are still under the personâs responsibility) is restricted by the land reform regulations. The maximum area of agricultural land which may be owned in an Area of the Second Level (a unit of government approximating a country) is between 5 and 20 hectares. This areal limitations are base on the population density and the amount of land available in the area concerned. This minimun does not mean that those who own less than 2 hectares of agricultural land are obliged to release it. The said 2 hectar is a target which should be implemented gradually.
Maximum areal limitations on land intended for construction pupose have not yet been determined. Nevertheless, unlimited ownership of land for construction purposes is prohibited. In the event that a person who owns more than 5 pieces of land (including land owned by the wife/husband and children still under their responsibility) intends to acquire more land, the Governmentâs consent in required.
The creation of right of ownership is:
A great portion of the rights of ownership which exist today are based on convertion of the BAL. Prior to 1960, a different system of rights in land prevailed. Some of these former rights were converted into rights of ownership upon fulfilment of conditions stipulated in the Basic Agrarion Law and its implementing regulations. Land Registry Office before March 24, 1961. In theory the conversion occurred automatically on Sept. 24, 1960, even though its administration was to be implemented later. To date, only a small portion of these converted rights have been registered (and the owners given land cercificates). Most of these registered lands were formerly lands with rights of ownership under Western law, previously registered in accordance with the Regulation on Transfer of Title, and related cadastral regulations.
A portion of the rights of ownership existing at present have been granted by the Government. This involves lands which, prior to the BAL had the status of State land. Right of ownership can also be acquired by changing a certain right on land already owned by the applicant, (e.g. right of building, right of exploitation, or right of use) on the grounds that the applicant wishes a right of a more permanent nature. Other than this general regulation, there are also a few special regulations which regulate the grant of rights of ownership to transmigrants and their families, the grant of rights of ownership to famers in the framework of implements land reform, the settlement of land formerly encumbered with conversion rights in the residency of Surakarta and the settlement of the right of use which was formerly the so-called non-permanent gogolan right.
The officials authorized to grant rights of ownership are designated in the Regulation of the Minister of Internal Affairs No. 1 of 1967. The said officials are usually the Minister of Internal Affairs/Agrarian Director General, (no the BPN) and in certain cases also the Governor/Provincial-Head concerned.
