Priority Rights in Land Law in Indonesia

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If one takes a look at the provisions of land law in Indonesia, there is a provision on the right to get the first priority or take precedence dependent on the order of the recipient of the land rights. That right is referred to as a priority right.

Provisions on Priority Rights can be found in some jurisprudences and regulations. One of them can be found in Article 37 Paragraph (4) of Government Regulation No. 18 of 2021 On Right of Management, Land Right, Condominium Unit and Land Registration. The article fundamentally specifies that previous right holders can be given priority over land directly handled by the state if the accompanying necessities are satisfied:

  • the land is as yet being in cultivation and used appropriately as indicated by the conditions, nature, and motivation behind its right giving;
  • the states of grant of right are appropriately met by the rights holder;
  • the right holder actually qualifies as a right holder;
  • the land is as yet as per the spatial arrangement;
  • not utilized or potentially got ready for the public advantage;
  • the environment and natural resources
  • the condition of the land and the encompassing local area.

Before the enactment of GR No. 18 of 2021, the regulation on Priority Rights can be seen in Article 9 Paragraph (2) of Government Regulation No. 40 of 1996 on Right to Cultivate, and Right to Usage and Right of Build. One provision has a stipulation that the right to build, right of usage and the right to cultivate can be renewed on the request of the rights holder if:

  • the land is still all around developed by the conditions, nature, and reason for its right allowing;
  • the conditions of grant of right are appropriately satisfied by the rights holder; and
  • right holder is as yet qualified as rights holder.

Moreover, the provisions on Priority Rights can likewise be found in statute. As in Supreme Court Decision No.: 2557 K/Pdt/2016 which is basically the Panel of Judges thinks about that all together for a previous rights holder to have need rights, the previous rights holder should apply for an extension of the right within a period of two years before the lapse of such land right.

Then, at that point, in the Supreme Court’s Decision No.: 603/K/Pdt/2013, the Panel of Judges thinks about that the party who gets the priority scale is that who factually has in possession of the land. This is in accordance with the Consideration of the Panel of Judges on the Supreme Court Decision No.: 475 K/Pdt/2010 which is fundamentally as a party that handles and strives for land ceaselessly for quite a while with no objections from other parties, then the plaintiff is said to be a good-faith tenant. Consequently, he ought to be qualified for getting the first chance to apply for property rights on his territory.

In view of the statute laid out above, it can be very well seen that for a priority right to become effective, the previous rights holder should satisfy two components, to be specific: (i) nonstop control and land cultivation; and (ii) apply for extending the land right. These days, according to the GR No. 18/2021, there are seven conditions to be satisfied to have the priority rights.

Therefore, it can very well concluded that the previous rights holder can have priority rights if he/she has satisfied the prerequisites and elements that have been stipulated in the regulations and jurisprudence.