The Development Concept of Law Certainty on the Building Cadastral Toward the Rights of Ownership on the Strata Title Rights Based on Property Law in Indonesia

Abstract

Cadastral is a system of registration of rights to the property of both movable and immovable belonging to the Property Law, including the system of registration of land rights. In the Indonesian Customary Law System, there is separate ownership of land and buildings or houses, which are caused by different ownership of the legal subject of the owner and the legal subject of the owner of the house or building. As the customary legal system is not written, then the practice of separate ownership is not explicitly registered which indicates and provides the base of ownership to the land builder. In Minangkabau custom, there is heritage land called as Ulayat, which is controlled by tribes and administered by tribal administrators, each tribal family member can build a house on tribal land that is ulayat. Likewise, in North Sumatra known as the Sultan's Grant Land derived from the Sultan's Grant can be built a house or building separately of its ownership. The building of the house or building is not registered, but it is legally recognized. This customary law practice shows the recognition of building objects on land not the owner of the building. In the practice of apartment ownership, it is recognized that a housing unit is a separate object either vertically or horizontally with the foundation of the Flats Act which is de facto separate from the land, since the land is a joint or land owned together, but the registration of ownership of the unit the flats are incorporated in a certificate of ownership rights of the apartment units, this is because the apartment regime in the registration system is subject to the land law regime which raises many problems in society. This study aims to build the concept of legal vacuum in the form of the development of building cadastral system as an alternative solution to create legal certainty on the ownership of buildings, especially in buildings Flats due to time constraints rights to the Right to Build Building which is a common land. The research method used is the normative juridical method by looking deeper into the legal postulates against the establishment of a property registration regime on buildings that are an integral part of the flats in which there is a right to unit units of flats, shared parts, shared objects, and land together.

Criticizing apartment ownership regulation in Indonesia

“…In fact, the status of HPL land only allows for obtaining a certificate of ownership of the apartment building unit (Sertifikat Kepemilikan Bangunan Gedung or SKBG) where the value of the building is cheaper than the certificate of ownership of the apartment unit (Sertifikat Hak Milik or SHM). The Secretary of the Director General of Housing at the Ministry of Public Works and Housing, Dadang Rukmana, admitted that commoners who do not understand the difference between SKBG and SHM, where SHM can be encumbered with mortgage rights, while SKBG can only be guaranteed fiduciary (Martin et al, 2019;Soemarwi, 2020).…”

“…This value is highly reflected on the annual increasing land price, added value from the development of surrounding areas, and protection of purchasing power against inflation. Therefore, it is not surprising that investment become a reason for Indonesian citizen to purchase properties (Yuniyanti, 2020;Khotimah, 2018;Martin et al, 2019;Sujana et al, 2019).…”