Limitation Legal Certainty of Long-Term Flat unit Ownership Related to Flat Building Ownership

Journal of Environmental Treatment Techniques

2020, Volume 8, Issue 3, Pages: 1196-1199

J. Environ. Treat. Tech.

ISSN: 2309-1185

Journal web link: http://www.jett.dormaj.com

https://doi.org/10.47277/JETT/8(3)1199

Limitation Legal Certainty of Long-Term Flat unit

Ownership Related to Flat Building Ownership

Sukiman Sugita*, Abdul Gani Abdullah, Gunawan Djajaputra

Faculty of Law, Tarumanagara, Jakarta, Indonesia

Received: 24/05/2020

Accepted: 29/07/2020

Published: 20/09/2020

Abstract

Humans in carrying out their lives must meet certain requirements of life which consists of several levels based on their interests,

including the most basic primary needs met first by Humans, Secondary Needs that arise and support primary needs and tertiary needs

that can be fullfiled after primary and secondary needs. Basic needs in this case will describing human needs for shelter or a place to

stay as their needs to living. The need for flats is inevitable to meet the need for shelter for the people of Indonesia, especially related

to the dense population in urban areas. However, the existing regulations cannot provide legal certainty due to material and formal

requirements that need to be provided in providing legal certainty have not been regulated so that it can be implemented optimally.

This research was conducted using a legal approach that prioritizes several legal theories to analyze and test the laws and regulations

related to the limitations of ownership of flats that are timed to be associated with building ownership so that ownership is expected to

provide recommendations and suggestions for developing policies that provide significant benefits in reforming the legal provisions

and the usefulness, justice and legal certainty in Indonesia.

Keywords: Flat building, Flat unit, Legal certainty, Ownership

goal. As a country with population estimate of 265 million

Introduction¹

people, it is reasonable if housing and settlements are one of

the basic needs that are influential in shaping the personality

of the Indonesian people. Housing and Settlements can not

only be seen as a means of necessity of Life, but more than

that it is a process of settling Humans in creating living

arrangements for the community and himself in expressing

identity (4). There are two roles of government in housing

construction anywhere in the World, namely the government

as the housing developer itself or at least facilitates housing

development and as a controller for housing development (5).

High population growth is in line with the level of demand for

housing that is getting higher, but the high demand is not

directly proportional to the availability of land for housing,

especially in densely populated urban areas. This has caused

many housing developers to start innovating by making

vertical-shaped dwellings. Vertical dwellings are commonly

known as Apartment and Flats (6).

In granting a clear legal status for the implementation of

flats, the government has formed a legal instrument that

regulates the implementation of flats. This is stated in the

Flats Act. The formation of legal instruments becomes

important to provide legal protection for people who wish to

have residential housing in the form of flats. Law Number 20

Year 2011 concerning Flats (UURUSUN) creates a firm legal

basis relating to the implementation of flats based on the

principles of welfare, justice and equity, benefits. The policy

direction for the construction of flats in Indonesia as stated in

UURUSUN includes three main elements, namely: (1) Spatial

Planning and urban development, using land optimally and

realizing settlement in population density. (2) The concept of

legal development, by creating new material rights, that is, flat

flats that can be owned individually by joint ownership of

objects, parts and land and creating a new legal entity that is

the association of residents who with their articles of

association and household budgets can act out and in the name

Land is an object in meeting the needs of human which

has a very important meaning. Land is a gift from God

almighty as a natural resource which is controlled by the state

to meet the needs of human life for shelter, farming, trade,

industry, education, to the construction of facilities and other

infrastructure and become a final resting place for human (1).

The problems that occur related to land become evidence of

the need for state interference and the law that governs and

provides legal certainty. Roscou Pound provides a legal basis

for the systematic requirements of the law as follows (2). In a

civilized society everyone can hope that others will not attack

them. In a civilized society everyone can expect that he can

own for the purposeful use of what they find and use for his

own benefit, what they create, with their own work and what

they earn, in the social and economic order that that time held

power. In a civilized society everyone can expect that the

people with whom they deal with public relations in society

will act in good faith. It can be expected that they will fulfill

the promises they have been able to fulfill or the hopes they

have created because of their actions.

Methodology (Literature Review)

The state as a community entity has an outline of its

purpose and function, the state aims to ensure equality for its

people, the State functions to resolve disputes, conflicts and

meeting the needs of the Common life. The state is an

instrument of shared interest in achieving happiness (3). To

achieve the common goal, human being needs to have a state.

Because, that country will has an organization of power rather

than Human. Society is a tool that will be used to achieve that

Corresponding author: Sukiman Sugita, Faculty of Law,

Tarumanagara,

alexander.ssugita@yahoo.com

Jakarta,

Indonesia.

E-mail:

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2020, Volume 8, Issue 3, Pages: 1196-1199

of the apartment unit owner, has the authority to realize order

and peace in the apartment life. (3) Concept of Economic

Development and business activities with the possibility of

construction credit and mortgages or fiduciary loading of land

along with buildings that will still be built with the existence

of dynamic settlement problem in the community, especially

in crowded cities, there are legal consequences, especially

regarding ownership and ownership rights (7). As stated in

agraria basic law number 5 of 1960 article 20, this article

explains that the right of ownership is the strongest right and

fulfillment that can be owned by people on the land, the

granting of these characteristics means that the right is

absolute and cannot be contested. Law No. 20 of 2011

on increasing the efficiency of land use, space and capacity of

the city, improving the quality of life of middle to lower

income people and preventing the growth of urban slums,

increasing the efficiency of infrastructure, urban facilities and

utilities, increasing community productivity and urban

competitiveness, increasing community productivity and city

competitiveness, increasing meeting housing needs for the

middle and lower classes and increasing employment and

economic growth (9), (10).

Flats in urban areas are based on the concept of

sustainable development, which places people at the center of

development. In its implementation, use the principles of good

governance and good corporate governance. The basic

principle of the construction of flats refers to the principles of

the construction of flats; the construction of flats is a

government responsibility that can be carried out by everyone

by getting help from the government and also by non-profit

organizations and business entities. Payment of commercial

flats can be carried out by anyone, where the offender

provides public flats with at least 20% of the total floor area

of the commercial flats built. Obligations to pay for these

public flats can be made outside the location of commercial

flats while still within the district / the same city as the

commercial flat related.

concerning Flats regulates property rights in article

paragraph 1. Property rights over housing units a separate

structure which is separated from the Joint right in the Joint

portion, Common objects and shared land. To ensure legal

certainty and ownership and investment of the Republic of

Indonesia government guarantees these rights in law number

5 of 2007 concerning investment and to provide certainty

and guarantee of comfort, equity of justice and consumer

safety and legal certainty for the public over ownership of

apartment units. The government regulates it in law No. 8 of

999 concerning consumer protection. With the existence of

these legal products, it is expected to provide legal certainty,

usefulness and protection for the community towards

ownership of flats in Indonesia.

Construction of flats is regulated by government

regulation No. 4 of 1988 concerning flats, the law on flats

provides regulations on types of flats that were not previously

regulated, namely public flats, special flats, state flats and

commercial flats. This is not yet regulated in the regulations

of apartment houses, so the regulations on apartment houses

need to be adjusted. This is important considering the

characteristics of each apartment and the restrictions on their

use and use are regulated differently. The role of the

government in the construction of flats is regulated in law

number 20 of 2011 concerning flats which includes the role

and policy of how to implement the construction and

regulation of ownership of flats, this has been regulated in the

provisions of government regulation No. 24 of 1997

concerning land registration and Law number 38 of 2008

concerning Buildings. As the author described above, the role

of the government must be to provide legal certainty for the

community and legal certainty of good investment so that

with clear certainty, community trust in the certainty of

ownership of flats and other matters guaranteeing ownership

rights. This is stated in law number 25 of 2007 concerning

investment. In article 22 of Law Number 25 Year 2007

regarding the period of ownership of land as a basis for

investment provisions that should be maintained in order to

provide certainty for the period of extension of ownership that

can provide a sense of security and certainty over building

ownership, with changes through judicial review, making the

public and investors have reduced trust in the government.

How the task of government is should be able to provide a

sense of comfort, fairness and expediency for the benefit of

the wider community. Thus it is not easy for a legal product to

change. The role of the government must be to provide

certainty and good and strong legality so that the community

can feel protected, even though there is now law number 8 of

1999 regarding consumer protection that is still lacking by the

public, because too many legal products cannot provide

protection in a manner certainly for the community in general,

especially the principle of certainty of ownership of flats, this

must be immediately addressed and repaired because the need

for flats increases in urban areas in Indonesia.

) Government's role in the current implementation of

Flats: The government is all state equipment or state

institutions that function as a means to achieve the goals of

the state, while what the government does is in the context of

carrying out the tasks of the state so that the government is

often referred to as state representation. Basically the role of

the government in the procurement of housing can be divided

into two:

(a) Policy makers Rational housing procurement strategies

and programs (8). Limitation of ownership of flats that are

timed in association with ownership of this building, the

government should formulate policies both legally and

practically so as to provide benefits and justice for housing

development, especially flats in force in Indonesia. The

government should be able to meet the needs and

development dynamics of development by immediately

making a legal effort to reform and harmonize the provisions

of the basic agraria laws, the Investment Act and the Law on

Flats, by following the acceleration of development of

residential houses, especially flats.

(b) Implementation of affordable housing procurement in

relation to flats for low-income communities. The government

acts as the provider or as an enabler, that is, when the

government acts as the producer of the house or provider, the

government is responsible and the decision maker making it

easier for the public and investors to obtain certainty. The task

of the government is to create a conducive climate and

provide a variety of community assistance to be able to

participate in the procurement of housing and the role of the

government must provide facilities for apartment developers

so as to create a good investment climate and provide legal

certainty over the ownership of flats. With government

intervention from the beginning of the licensing, ownership,

development and control processes and mechanisms in

accordance with statutory provisions and legal certainty, so

that legal problems do not occur in the future. Flats

Development aims to meet the needs of the community,

especially in urban areas that are livable and affordable for

middle to lower income people in urban areas with dense

population. The construction of these flats will have an impact

(2) Legal certainty of limits on ownership of flats with

time duration related to building ownership. Based on the

terms of ownership of flats with a time frame associated with

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2020, Volume 8, Issue 3, Pages: 1196-1199

ownership of buildings in Indonesia, at least based on five

laws and regulations, namely: The 1945 Constitution, in

particular Article 33 Paragraph 3, Basic Agrarian Law

Number 5 of 1960, Investment Act No. 25 of 2007, Flats Act

No. 20 of 2011. Regulation of the Minister of Public Works

and Public Housing No. 23 of 2018 regarding associate of

flats owner. According to Sudikno Mertokusumo, legal

certainty is a guarantee that the law can be carried out

properly. Certainly legal certainty has become an inseparable

part. This is prioritized for written legal norms, because

certainty itself is essentially the main goal of the law, this

legal certainty is the regularity of the people and is closely

related to certainty itself because the essence of order will

cause a person to live in harmony certainty in carrying out the

activities required in carrying out the activities of community

life itself (11). Philosophical and Juridical Basis for the

Conception of the National Land Law, Justice, Humanity and

Sovereignty is a reflection of the spirit of article 33 paragraph

harmonious rule of law in order to create legal certainty and in

order to provide benefits. With clear regulations, of course,

development activities will be more easily implemented and

applied to reduce the risk of losses experienced by the owners

of flats and the wider community and developers. Fourth,

positive law should not be easily changed, in the opinion of

the author as outlined on the previous page, it is fitting that

the provisions of article 22 of the investment law related to

the extension of secondary rights remain and are not

invalidated by the constitutional court, because basically they

do not violate or contradict a The law (higher statutory

regulations) in this case the 1945 Constitution, which is

strengthened by these rules is the same item and does not

reduce the essence of the principle of the length of time

stipulated in the LoGA and its implementing regulations (3).

The ideal arrangement related to ownership limits for a long-

term apartment is linked to building ownership. According to

the authors, the certainty of the limit of ownership of flats

which is connected for a long time with building ownership

does not provide certainty due to various errors, complexities

and unclear provisions related to formal procedures in the

maintenance of ownership rights, for this reason it is

necessary to reform and harmonize the provisions of the

statutory regulations. Regulations related to the limitation of

ownership of a long term apartment connected to the

ownership of the building must be carried out both in the

juridical order and the practical implementation. The basis for

granting land titles for the construction of flats to the actors of

flats or developer is closely related to the legal provisions

relating to land titles related to investment activities. In the

investment law is widely open to investors both domestic and

foreign investment, it is necessary to ensure licensing and

acquisition of land rights such as how much land can be

obtained and the term of the land provided by the legislation

to the perpetrators of home construction stacking, available

land area for investment including HGB, HGU and usage

rights. With the provisions of the apartment laws and

investment laws, it should be able to provide a certain period

of time to ensure how much time can be obtained for

investments and owners of flats, because the provisions of

ownership rights are clearly stipulated in article 20 of the Act

Law No. 5/1960 and Law number 20 of 2011 concerning flats.

And guaranteed in the provisions of law No. 25 of 2007

concerning investment, which regulates clearly and

unequivocally regarding the period of ownership both for

apartment units attached to land rights. In this provision

clearly stipulates the time period for the acquisition of land

titles as stipulated in article 22 of law number 25 of 2011. But

this provision is canceled by the constitutional court, this

makes it difficult and there is no legal certainty, the law must

have effectiveness the law is a process that aims at the law

being effective; HGB can be granted in the amount of 80

years and can be granted and extended in advance at the same

time for 50 years and can be renewed for 30 years. With the

existence of these regulations there is clearly certainty over

the ownership of land and buildings. This must be

immediately returned and harmonized between one legal

product and another legal product. So that it becomes more

efficient from the existence of ease and legal certainty for the

community, especially regarding ownership of flats. In the

provisions of article 4 letter (b) of the investment law number

25 of 2007 explaining to guarantee legal certainty, business

certainty, and business security for investment since the

licensing process until the end of capital offering activities in

accordance with statutory provisions. Clearly, there are

provisions and limitations in the investment law number 25 of

2007 providing protection against the capital offer. According

of the 1945 Constitution which is the basis of the UUPA

itself gives and places a right in its place based on a principle

that all people have the same position in before the law, where

the state is involved in the regulation of ownership provisions.

The concept and principle of Horizontal separation in land,

Horizontal Separation states that buildings and plants are not

part of the land, consequently the land boundary does not

automatically include the ownership of the buildings and

plants on it. The application of the principle of horizontal

separation is a consequence of the inclusion of elements of

customary law in national land law, this makes a rule of

ownership ambiguous, the principle of horizontal separation

in land law is a legal product in Indonesia that does not reflect

the legal function to provide legal certainty to achieve justice

and efficiency. The role of the government must be explicitly

able to regulate the rights of ownership, especially for time-

bound flats associated with building ownership. That the

issuance of government regulation number 40 of 1996 and

UUPM which specifically provides a tool in the form of

extension of secondary rights from individual rights or

individual rights is a good breakthrough and should be

appreciated for the obligations or facilities for extension of

secondary rights. This is regulated in article 22 of the Capital

Market Law regarding the period of acquisition of rights at the

same time the Capital Market Law provides 80 years of

building use rights by being granted and extended for 50 years

and renewable for 30 years. This is very good for the certainty

and legality of ownership of flats that can provide certainty

over the unit period obtained by the owner of the flats, but this

cannot be done because of other views from various parties

and conduct a judicial review of the law. This makes

uncertainty over laws and regulations that can change which

leading to uncertain regulations. Gustav Radbruch stated 4

basic things related to the meaning of legal certainty that can

be associated with the Limitation of ownership of flats that

have a period of time associated with building ownership.

First, that the law is positive, meaning that the positive law is

legislation which means that the positive law discussed in this

journal is the agrarian main law (UUPA), the investment law,

and the law of the flats that for the three laws these laws must

work in harmony to provide a useful legal certainty. Secondly,

that the law is based on facts which mean that it is based on

reality in people's lives, the fact that there have been cases

where the case was a reminder of the formation of the law.

Especially regarding matters related to ownership due to the

absence of legal certainty that can be a reference to legal

products. Third, that the facts must be formulated clearly in

purpose to avoid errors in meaning. Besides being easy to

implement; the fact that it is important to formulate a

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Journal of Environmental Treatment Techniques

2020, Volume 8, Issue 3, Pages: 1196-1199

to the author, Article 22 of the investment law No. 25/2007

was re-enacted, providing legal certainty and time efficiency

in the extension of ownership rights and certainty of

ownership of buildings, especially in flats in Indonesia. With

these provisions can provide certainty and comfort for both

developers and investors to ensure the period of ownership of

rights and buildings (12), (13).

6. Bellini OE. Adaptive Exoskeleton Systems: Remodelage for

Social Housing on Piazzale Visconti (BG). In: Della Torre S.,

Cattaneo S., Lenzi C., Zanelli A. (eds) Regeneration of the Built

Environment from a Circular Economy Perspective. Research for

Development. Springer, Cham. 2020.

Maxim B & Tshenolo M . Recognising the family house: a

problem of urban custom in South Africa, South African Journal

0.1080/02587203.2019.1632737.

Indonesian Law Number 5. Agraria Law. 1960.

Urip S. Pendaftaran dan Peralihan Ha katas Tanah. Kencana

Prenadamedia Group, Solo. Pp.7a.

Human

Rights.

2019;35(2):147-168.

DOI:

Conclusion

The need for seriousness from the government to

immediately fix the existing legal products so as to facilitate

understanding for the public on a legal product that regulates

the interests of the community so that the legal product can

provide legal certainty, effectiveness and provide a sense of

security and comfort for the property business sector and the

owner of the apartment units.

Thus a legal product does not overlap with the many

derivatives of a law, as is the case today with ownership of

land titles and apartment buildings. The current legal products

are the Agrarian Law No. 5 of 1960, the Law on Flats, Land

Registration Regulation No. 24 of 1997 and the Investment

Law and Law No. 8 of 1999 concerning Consumer protection.

Unable to provide a sense of security, comfort and legal

0. Samiee KS. Context comfort feature improvement regarding

urban blocks designing based on maximal utilization of passive

solar energy (Case study: Latman Kan residential site), Journal of

Art and Architecture Studies. 2015;4(2):35-44.

11. Sudikno M. Penemuan Hukum. Liberty. Yogyakarta. 2009.

2. Soerjono S. Faktor Faktor yang mempengaruhi Penegakan

Hukum. Penerbit PT.Raja Grafindo Persada. Jakarta. 2007.

3. Indonesian Law Number 25. Concerning Investment. Jakarta.

007.

certainty, this can provide

a bad perception for the

development of flats in Indonesia. With the always changing

conditions for implementing regulations that must be followed

in the licensing process and other matters relating to

ownership of flats. The study expects the government to

immediately accommodate the needs and development of the

business world and the dynamics of society that continues to

move on the process of advancing times, especially reforming

the basic agrarian law product no. 5 of 1960 which has been

sufficiently long to be adapted to current conditions, so that it

can be more certain in the future provides certainty over the

ownership of special flats in Indonesia

Ethical issue

Authors are aware of, and comply with, best practice in

publication ethics specifically with regard to authorship

(avoidance of guest authorship), dual submission,

manipulation of figures, competing interests and compliance

with policies on research ethics. Authors adhere to publication

requirements that submitted work is original and has not been

published elsewhere in any language.

Competing interests

The authors declare that there is no conflict of interest that

would prejudice the impartiality of this scientific work.

Authors’ contribution

All authors of this study have a complete contribution for

data collection, data analyses and manuscript writing.

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