Implementation of
Building Use Rights in State Land Management by Developers
Supriyanto1, Azis
Budianto2, Faisal Santiago3
Universitas Borobudur, Indonresia
[email protected]1, [email protected]2, [email protected]3
Keywords |
Abstract |
Building rights,
land management, developers, investment, sustainable development. |
Management
of state land through Building Rights (HGB) is an important issue in
infrastructure development and economic investment in Indonesia. The problems
faced include complex bureaucracy, conflicts of interest, and lack of
supervision in the implementation of HGB. This study aims to analyze the
implementation of HGB in the management of state land by developers and its
impact on infrastructure development and economic growth. The research
methods include literature studies and policy analysis covering regulations
and best practices in the field. The results of the study indicate that
effective implementation of HGB can encourage investment, create jobs, and
improve access to public facilities. However, challenges such as regulatory
complexity and potential conflicts of interest need to be addressed through
collaboration between the government and developers. The implications of this
study are the importance of implementing transparent governance, clear
regulations, and legal protection to ensure sustainable and inclusive
management of state land. |
Corresponding Author : Faisal Santiago
E-mail:
[email protected]
INTRODUCTION
Global
issues related management state land by developers become attention big in law
agrarian, especially in developing countries like Indonesia. Many countries are
facing challenge similar in optimize use land For
objective development without sacrifice interest public. Use right use
building (HGB) above land with rights status management (HPL) becomes one of
the adopted solution For overcome problem In the Indonesian context , the system This give opportunity for party private
For contribute to development national , but still cause challenge legal and
administrative.
Globally
, management state land by the party private has bring up various challenges ,
including protection rights public local and sustainability environment . In
the research by
In
Indonesia, the HGB system applied above HPL holds role important in management
state land . Triadi Kurniawan (2020) stated that
granting of HGB above HPL land allows developer For utilise
land in a way productive without lost control by the state. However ,
According
to
Research
by
Urgency
study This lies in the need For create system management efficient
, fair and transparent state land .
Study
This aiming For Identifying challenge legal and administrative in application
of HGB above HPL land. Analyzing benefits and risks from management state land
by developers. Providing recommendation For increase efficiency and
transparency in HGB and HPL systems .
RESEARCH METHOD
The
methods used in this study include literature study and policy analysis, which
aim to provide an in-depth understanding of the implementation of Building Use
Rights (HGB). The literature study was conducted by reviewing various sources,
such as laws, government regulations, and relevant articles and journals. This
aims to identify the legal and regulatory framework governing HGB, as well as
understand the underlying concepts and principles. The policy analysis focuses
on the implementation of HGB in practice in the field. This includes interviews
with stakeholders, such as developers, local governments, and communities, to
explore their experiences and challenges. The best practices identified will
serve as a reference for better policy recommendations. Through this
combination of methods, it is hoped that the research can provide comprehensive
insights and concrete solutions in the management of state land through HGB.
RESULTS AND DISCUSSION
Form
of Transfer of Land Management Rights that Grants Building Use Rights
and
Rights of Use
Land
with Management Rights controlled by the rights holder can be used to carry out
his duties or business. Land use can also be transferred to a third party with
the consent of the management rights holder. Although the management rights
holder has the authority to use his land for the purposes of duties or
business, this is not the main purpose of granting rights. The main purpose of
granting management rights is to provide land for use by other parties who need
it. Based on the Regulation of the Minister of Agrarian Affairs No. 1 of 1966
concerning Registration of Use Rights and Management Rights, management rights
holders are required to register their management rights to land at the Land
Registration Office. In its development, Article 9 of Government Regulation
Number 24 of 1997 concerning Land Registration stipulates that management
rights are included in the objects of land registration. The purpose of
registering land management rights at the Regency/City Land Office is to issue
management rights certificates as proof of ownership. With the existence of a
management rights certificate, rights holders can easily prove their status as
rights holders, which in turn creates a guarantee of legal certainty, legal
protection, and orderly land administration.
Legal
certainty guarantees include certainty regarding the status of management
rights, the subject of management rights, and the object of management rights.
Legal protection for management rights holders provides a sense of security in
controlling land management rights, without any interference or legal claims
from other parties. Management rights holders will receive legal protection as
long as there are no legal defects, such as procedural defects, authority
defects, or substantive defects in the issuance of management rights
certificates. The issuance of management rights certificates provides external
authority to rights holders, allowing them to transfer part of the land
management rights to third parties or cooperate with third parties. According to
Yudhi S and Boedi DH, authority is defined as the right to act or the power to
make decisions, order, and delegate responsibility to others. [5] Land rights
obtained by third parties from the transfer of part of the land Management
Rights are building use rights, use rights, or ownership rights. The transfer
of part of the land management rights to third parties and/or cooperation with
third parties, results in the creation of a legal relationship between the
Management Rights holders with party third .
Land
rights arising from the transfer of Land Management Rights to third parties,
such as Building Use Rights, Usage Rights, and Ownership Rights, are regulated
in Article 2 of the Regulation of the Minister of Home Affairs Number 1 of 1977
concerning Procedures for Application and Transfer of Rights to Parts of Land
Management Rights and Their Registration. The article stipulates that part of
the land management rights granted to the rights holder may be transferred to a
third party and then submitted to the Minister of Home Affairs or the relevant
Regional Governor to be granted ownership rights, building use rights, or usage
rights, in accordance with the land allocation and use plan that has been
prepared by the rights holder.
The
transfer of land with management rights to a third party was initially
regulated in Article 3 paragraph (1) of the Minister of Home Affairs Regulation
No. 1 of 1977, namely: "Any transfer of land use that is part of the Land
Management Rights to a third party by the holder of the Management Rights,
whether accompanied by the construction of buildings on it or not, must be
carried out by making a written agreement between the holder of the management
rights and the relevant third party." The provisions in Article 3
paragraph (1) of the Minister of Home Affairs Regulation No. 1 of 1977 only
regulate that the legal relationship between the holder of the management
rights and the third party regarding the transfer of the use of land management
rights must be carried out with written consent. However, this provision does
not mention the type of written agreement in question, whether made in the form
of a notarial deed or a personal deed. Maria SW Sumardjono is of the opinion
that a written agreement between the holder of the management rights and the
third party must be stated in the form of a Land Use Agreement (SPPT). In
practice, this SPPT can be referred to by other names, such as an agreement for
the transfer , use, or management of land rights, and will hereinafter be
referred to as an "agreement". [6]
In
practice, there are various provisions of the agreement made between the
management rights holder and the third party. First, the Surabaya City
Government as the management rights holder uses the term Land Use Agreement.
Second, PT Pelabuhan Indonesia (Persero) refers to the agreement with the third
party as the Port Land Use Transfer Agreement. Third, PD Sarana Jaya DKI
Jakarta uses the term Land Utilization Cooperation Agreement for the
Construction and Development of Shopping Center Buildings. Fourth, PT Surabaya
Industrial Estate Rungkut (SIER) refers to its agreement with the third party
as an agreement use land industry .
Regulation
of the Minister of Home Affairs No. 1 of 1977 was declared no longer valid by
Regulation of the Minister of State for Agrarian Affairs/Head of the National
Land Agency No. 9 of 1999. The term Land Use Agreement is stated in Article 4
paragraph (2) of Regulation of the Minister of State for Agrarian Affairs/Head
of the National Land Agency No. 9 of 1999, namely: "In the case of land
requested is land with Management Rights, the applicant must first obtain an
appointment in the form of a land use agreement from the holder of Management
Rights." The provisions in Article 4 paragraph (2) of Regulation of the
Minister of State for Agrarian Affairs/Head of the National Land Agency No. 9
of 1999 state that the legal relationship between the holder of management
rights and a third party in the use of land management rights must be made with
a land use agreement. However, this provision does not regulate whether the
land use agreement must be made in the form of a notarial deed or a personal
deed. According to Endang Purwaningsih, an agreement is considered valid if it
meets four cumulative requirements, namely: there is an agreement between the
parties; capacity to make a contract; clear object (rights and obligations of
each party); and legitimate reasons (not contrary to public order, morality and
statutory regulations). [7]
A
land use agreement made between the management rights holder and a third party
is considered valid if it meets the four requirements above. The transfer of
part of the land management rights by the rights holder is carried out through
the preparation of a Land Use Agreement (PPT). This PPT can be prepared in the
form of a notarial deed made by a notary, or a personal deed made by the
parties. The selection of the form of the deed depends on the agreement between
the management rights holder and the third party. Basically, the PPT contains
an agreement by the management rights holder to grant permission to a third
party to use part of the land management rights. The third party can use the
land for various purposes, such as a residence, shophouse, shop/town/mall,
hotel, or factory. With the existence of a Land Use Agreement, a legal
relationship is established between the management rights holder and the third
party. The use of part of the land management rights by a third party is not
only carried out through the PPT, but can also be done with a BOT Agreement.
Maria SW Sumardjono explained that the BOT Agreement is an agreement between
two parties, where the first party surrenders the right to use its land for
development by a third party. The second party has the right to operate or
manage the building for a certain period of time, with the possibility of
providing a fee or without a fee to the first party. After the operational
period ends, the second party is obliged to return the land and the building on
it to the first party in a condition ready for operation. [8]
Budi
Santoso defines BOT as "Build, Operate, and Transfer (BOT)", which is
a contract or agreement between the project owner (Government) and another
party acting as the operator or project implementer. In this agreement, the
project owner grants the operator the right to build public facilities or
infrastructure, and operate them for a certain period of time. During this
period, the operator can take all or part of the profits. At the end of the
contract, the operator must return the project to its owner. [9] The definition
of BOT is basically the same as the definition of Build Operate Transfer (BGS)
as stated in Article 1 number 12 of Government Regulation No. 5 of 2006
concerning Management of State/Regional Property, namely: "Build Operate
Transfer is the utilization of state/regional property in the form of land by
another party by building buildings and/or facilities including their
facilities, then used by another party within a certain agreed period of time,
to then be returned to the land along with the buildings and/or facilities
including their facilities after the end of the period."
BOT
agreements arise because the management rights holder experiences limited funds
or does not have funds to build infrastructure. Therefore, the management
rights holder cooperates with a private company to carry out development. In
this case, the management rights holder provides land, while the private
company provides funds for infrastructure development. A BOT agreement is an
agreement between the management rights holder and a private company, which
gives the private company the right to obtain building use rights on the
management rights land for a certain period of time. The private company is
also given the right to build infrastructure and operate it within the agreed
period of time. During this period, the private company can provide fees or no
fees to the management rights holder, and at the end of the period, the
building must be returned to the management rights holder.
There
are several provisions that need to be considered in building use rights or
land use rights with management rights. First, building use rights or use
rights must be preceded by a land use agreement between the holder of
management rights and a third party. Second, a recommendation from the holder
of management rights is required for the occurrence of building use rights or
use rights. Third, these rights are obtained through an application for the
granting of building use rights or use rights to the Head of the Regency/City
Land Office whose work area includes the location of the land. Fourth, building
use rights or use rights are determined by the government through a decree
granting rights by the Head of the relevant Land Office. Fifth, building use
rights or use rights come into effect after the decree is registered by the
applicant at the Land Office. Sixth, as proof of rights, building use rights or
use rights certificates will be issued by the relevant Land Office. Seventh,
building use rights or use rights do not change the legal relationship between
the holder of management rights and their land. Eighth, building use rights on
land with management rights can be valid for up to 30 years and can be extended
for 20 years, and extended for a maximum of 30 years. Ninth, the right of use
can be valid for up to 25 years, extended for 20 years, and extended for a
maximum of 25 years. Tenth, each extension and extension of the right to build
or the right to use requires prior approval from the holder of the management
rights. Eleventh, the transfer of the right to build or the right to use over
the land of the management rights requires prior approval from the holder of
the management rights. Twelfth, the imposition of a mortgage on the land of the
building rights or the right to use must also obtain approval from the holder
of the management rights. Thirteenth, if the right to build or the right to use
becomes the object of land acquisition, the holder of the management rights has
the right to receive compensation for the land, while the holder of the right
to build or the right to use has the right to receive compensation for the
building. Fourteenth, the right to build for the types of Simple Houses (RS)
and Very Simple Houses (RSS) can be upgraded to ownership rights. Fifteenth,
the expiration of the right to build or the right to use will result in the
land returning to the control of the holder of the management rights.
Ideal
Legal Concept in the Implementation of Granting of Building Use
Rights
Above Management Rights
Legal
Construction in the Implementation of Granting Building Use Rights over
Regional Government Management Rights occurs due to the existence of laws and
regulations that allow Building Use Rights to grow on land with Management
Rights. Part of the Land Management Rights allocated to regional governments,
institutions, agencies, or government-owned legal entities for housing
development can be transferred to third parties. This transfer is proposed to
the Minister of Home Affairs or the relevant Regional Governor to be granted
ownership rights, building use rights, or usage rights, in accordance with the
land allocation and use plan that has been prepared by the Management Rights
holder. Any transfer of land use that is part of the Land Management Rights to
a third party, whether accompanied by the construction of a building on it or
not, must be carried out with a written agreement between the Management Rights
holder and the third party concerned. Traders who own shophouses with Building
Use Rights (HGB) face several weaknesses if these rights are burdened with
mortgage rights and want to transfer their rights to a third party. One of
these weaknesses is the lack of clarity regarding the recommendation fee for
installing mortgage rights, especially in situations where HGB is burdened with
mortgage rights. They only get information regarding the recommendation fee for
transferring rights, without a detailed explanation. In addition, HGB holders
also have difficulty in transferring rights to third parties, which results in
difficulties in executing KPR rights. This makes it difficult for banks to
provide loans to HGB holders who are used as collateral for the Right to Manage
(HPL) 05 land. In other words, HGB holders on HPL 05 land have difficulty
getting loans because this collateral is difficult to execute. They also have
to continue to pay the recommendation fee for extending the rights and other
fees if the HGB term ends, because the HGB on HPL 05 cannot be upgraded to
ownership rights. With these weaknesses, it is important for HGB holders on HPL
05 land to obtain legal protection, including accurate and transparent
information regarding their rights and obligations as consumers. The state
financial legal system outlines several important principles, which affect the
level of flexibility in the use of state property, especially the use of land.
These principles are as follows:
a. Utilization
land must to include manager goods ( Local Government ). Participation Regional
Government in the form of giving Recommendation . Recommendation The Regional
Government consists of on two things , namely recommendations that are of a
nature agree user goods use land , ( article 19 paragraph (3) PP No. 6 of
2006), and recommendations about magnitude contribution and benefits .
b. Utilization
only can done with choose one from four form utilization , ( i ) rent, (ii) borrow use , (iii) cooperation utilization ,
and (iv) construction use surrender and build hand over use ( Article 20 PP No.
6 of 2006).
c. State
property cannot be used as collateral for debt by third parties. (article 49
paragraph (5) Law No. 1 of 2004 concerning State Treasury.
d. Utilization
goods state owned must tied up with One agreement .
e. Utilization
land restricted with term 30 years , counted since date agreement signed
( Article 29 paragraph (1) PP No. 6 of 2006.
The
ideal legal concept must prioritize legal certainty, transparency, and
protection for all parties involved. First of all, it is important to clearly
regulate the HGB registration and transfer mechanism so that all parties
understand their rights and obligations. An efficient and transparent
registration process will increase the trust of rights holders and provide
legal certainty regarding the status of the land they manage. Furthermore, the
ideal legal concept must guarantee the involvement of the Regional Government
in every stage of the granting of building use rights. This participation is
not only limited to approval but also includes the provision of adequate
information regarding the procedures and costs involved.
Recommendations
from the Regional Government must be the first step in any transfer of rights,
where the management rights holder and third parties must draw up a clear and
detailed agreement to avoid potential disputes in the future. On the other
hand, protection for HGB holders who face challenges such as mortgage rights
must also be a concern. The ideal legal concept must include an effective and
fair dispute resolution mechanism, so that rights holders can gain access to accurate
and reliable information. This is important to minimize difficulties in the
transfer of rights and in the execution process, especially when dealing with
third parties. Finally, regulations governing the time limit and type of land
use must be clear and firm. The granting of building use rights must be
regulated with an appropriate time period, including the possibility of
extension and renewal that does not cause difficulties for rights holders. By
implementing legal principles that are transparent, fair, and involve active
participation from all parties, the implementation of building use rights over
management rights will be more sustainable and provide optimal benefits for the
community and local economy.
Optimal
HGB implementation requires consistent regulations and transparent
administrative procedures. Collaboration between the government and developers
needs to be improved to reduce bureaucratic barriers and ensure better
supervision. Empirical data shows that areas with clear HGB policies experience
faster economic growth and better development equity. Conversely, areas
experiencing land conflicts tend to face delays in development projects and
investment uncertainty. Therefore, this study recommends the addition of
empirical data in the form of case studies from various regions to strengthen
the analysis.
In
addition, a review of regulations related to HGB shows the need to revise
several articles that are still ambiguous. Increasing the capacity of
government officials and simplifying administrative procedures are also key to
supporting more effective HGB implementation. Thus, this study provides a
strong foundation for better policy making in the future.
CONCLUSION
The
holder of the management rights has the authority to plan the allocation and
utilization of land, use the land for the purposes of his duties, and transfer
part of the land management rights to third parties or cooperate with them.
However, this transfer can only be done if the land management rights have a
certificate issued by the District/City Land Office. The transfer of part of
the land management rights to a third party resulting in building use rights or
use rights is carried out through a Land Use Agreement or BOT Agreement.
Meanwhile, to produce ownership rights, the transfer is carried out through the
release of land management rights by the rights holder. It should be noted that
building use rights or use rights over land management rights do not change the
legal relationship between the holder of management rights and their land,
while ownership rights over land management rights will end the legal
relationship.
The
granting of Building Use Rights (HGB) over Regional Government Management
Rights is regulated by laws and regulations that allow the transfer of these
rights to third parties. However, HGB holders face various challenges,
especially related to KPR rights, which make it difficult for them to transfer
rights and obtain loans. The need for legal protection and clear information
for HGB holders is very important in this context. In addition, the principles
in the state financial legal order emphasize the importance of management
involving the Regional Government, limitations on utilization, and provisions
that bind every use of state property. This shows the complexity and need to
ensure transparency and compliance with regulations in the management of land
management rights.
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