FORMAL TRUTH OF LAND SALE AND PURCHASE DEED, EFFECTIVENESS OF ELECTRONIC CERTIFICATES, AND PROTECTION OF GOOD FAITH BUYER

There are many legal problems in Indonesia related to land, whether it's a problem in the form of double certificates, land execution process, or obstacles to extending a  Right of Use of Structures. These problems, in particular related to double certificates, often arise due to the lack of prudence and thoroughness from the Land Office, as well as the negligence of the public who do not carry out land registration or do not report changes in physical data or judicial data on their land rights.

Even though the issuance of a new certificate - as a replacement certificate for a land certificate that is declared lost - requires a fairly long process such as reporting to the police, freezing at the Land Office, and announcement in the printed media, this still does not guarantee that the new land certificate becomes trouble free. In practice, many individuals have sold their land and later admit to losing the certificate to obtain a replacement certificate. So on land like this, claims related to the existence of double certificates often arise.

In cases related to double certificates, sometimes the buyer buys land with a replacement certificate through a legal land sale and purchase mechanism. So the buyer feels that his rights and interests as a buyer in good faith must be legally protected. But in fact, the seller has previously sold the land to another party using the old land certificate, and also through a legal land sale and purchase mechanism. To resolve this, a landowner who feels that his rights have been impaired can seek dispute resolution remedies in criminal and civil terms.

The evidentiary system adopted by the Civil Procedure Law in Indonesia is not a negative legal regime (negatief wettelijk stelsel) such as in the evidentiary process in a criminal case examination that seeks the truth based on a means of evidence that is valid and reaches the minimum limit of evidence and the truth must be believed by the judge.

The truth that the judge seeks and embodies in the Civil Procedure Law is only the formal truth (formele waarheid). Indeed, it is not prohibited if a civil court looks for and finds material truth, but if the material truth is not found in a civil court, then the judge is legally justified to render a decision based on formal truth. This search for formal truth makes the judge's duty and role passive.

As an illustration, in a case that we handled regarding double certificates, a land owner (A) who felt that he had never sold his land, was surprised to find that on his land the foundations of a building had been built by a company (B) that claimed to have purchased the land from a person named (C). After being traced, it was discovered that after (C) sold his land to (A), it turned out that (C) requested a replacement certificate to the Land Office on the grounds that the land certificate was lost, and C then resold the land to (B) using the replacement certificate obtained from the Land Office. On this matter, (A) reported (C) to the police, and (C) was later found guilty of committing the criminal act of giving false testimony under oath through a court decision which became final and binding. On the basis of the criminal decision, (A) filed a lawsuit against (C) and at the same time requested the cancellation of the replacement land certificate owned by (C). A’s lawsuit was later granted by the Panel of Judges, and the Panel of Judges in their decision stated that (C) was found guilty of committing an unlawful act, as well as declared the cancellation of the replacement certificate issued by the Land Office.

To avoid cases like the one above, we as a law firm that has been established for more than 30 years always advise our Clients that the sale and purchase of land be stated in a Sale and Purchase Deed made before the competent authority so that it can be considered as an authentic deed. In addition, we advise our Clients to always check the process of issuance of the land certificate at the local Land Office, and also remind our Clients to always convey information to the Land Office whenever there is a change in physical data or judicial data on their land.

What is meant by authentic deed is a deed that is drawn up before an authorized official and provides conclusive evidence. This is regulated in Article 1868, Article 1870 of the Civil Code and Article 165 of HIR (Het Herzeine Indonesisch Reglement), as follows:

 Article 1868 of the Civil Code:

“An authentic deed is one which has been drawn up in a legal format, by or before public officials who are authorized to do so at the location where this takes place.”

Article 1870 of the Civil Code:

“An authentic deed shall provide conclusive evidence regarding the contents stipulated therein for the parties, their heirs or parties having rights therein.”

Article 165 of HIR:

"A valid letter (deed), i.e. a letter made in this way by or before a public official who is authorized to make it, is sufficient evidence for both parties and their heirs and parties having rights therein regarding all the contents stipulated therein and also about the contents of the letter as a notification only, in the latter only if what is being notified is directly related to the matter in the letter (deed)."

Based on the aforementioned legal provisions, the contents of an authentic deed are something that cannot be disputed until they can be proven otherwise. However, there are many civil cases in which the plaintiff and defendant can both show ownership of land in the form of a certificate. In this regard, Frans Winarta & Partners always tries to protect clients on the basis of a buyer in good faith.

 In several cases that we handled, we always adheres to the provisions of the Supreme Court of the Republic of Indonesia, namely the Supreme Court Jurisprudence No. 251 K/Sip/1958 dated 26 December 1958 jo. Supreme Court Jurisprudence No. 1230 K/Sip/1980 dated 29 March 1982 jo. Supreme Court Circular No. 7 of 2012 concerning the Legal Formulation from the Plenary Meeting of the Supreme Court Chamber as Guidelines for the Implementation of Duties for the Court dated 12 September 2012 which confirms that the sale and purchase agreement made by a buyer in good faith must be considered valid and if anyone is harmed by the transaction, the rights of the buyer in good faith must be protected by law, as follows:

Supreme Court Jurisprudence No. 251 K/Sip/1958:

"Buyers who have acted in good faith must be protected and the sale and purchase concerned must be considered legitimate."

 Supreme Court Jurisprudence No. 1230 K/Sip/1980:

"Buyers in good faith must receive legal protection."

 SEMA No. 7/2012:

"Protection must be given to a buyer in good faith even if it is discovered that the seller is a person who has no rights."

 Based on the above legal principles, the buyer who is in good faith and does not know of the deception committed by the seller, can fight for his rights and must be protected by law.

 To solve legal problems related to double certificates, this year, the Government of Indonesia officially implemented Electronic Certificates as regulated in the Regulation of the Minister of Agrarian Affairs and Spatial Planning/Head of the National Land Agency of the Republic of Indonesia Number 1 of 2021 concerning Electronic Certificates ("Permen 1/2021”). This Permen 1/2021 facilitates the implementation of electronic land registration for (i) first time land registration or (ii) maintenance of land registration data. The data include data on rights holders, physical data, and judicial data on plots of land that are valid and have maintained their authenticity. Article 5 paragraph (1) of Permen 1/2021 has also stated that Electronic Documents and/or their printouts are valid means of evidence and an extension of valid means of evidence in accordance with the applicable procedural law in Indonesia. This certainly can help simplify the process of proving the truth of a certificate in a civil hearing.

 As we quoted from the Kompas website on 3 February 2021, the Special Staff of the Minister of Agrarian Affairs and Spatial Planning/National Land Agency of the Republic of Indonesia for Institutional Affairs Teuku Taufiqulhadi stated that manual certificates were very unsafe because they were easily lost, easily retrieved by other people, and easily duplicated. Therefore, we sincerely hope that the Indonesian Government's Online Certificate program through the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency of the Republic of Indonesia can be carried out accordingly so as to minimize the occurrence of double certificates and create administrative order for the Indonesian Government. In addition, as a law firm that upholds clean law enforcement, we also think that the National Land Agency in Indonesia must be able to carry out its duties with full prudence and thoroughness, so as not to cause disputes in the future.

 Written by:

Harri Budiman, S.H. - Kelly Sam, S.H. - Edbert Nugraha, S.H.

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