regulation on abandoned land

8/3/2019 Regulation on Abandoned Land

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Regulation on Abandoned Land: A Comparative Study between Indonesian and

Australian Laws*

By: Hery Listyawati**

Abstract

This research studies the difference between the two systems in dealing with how to useland in an effective way. This research was done by way of library research and qualitative

analysis at the Australian National University in the academic year 2003-2004.

The research discovered that adverse possession used by Australian law was similar to

that used by Indonesian law under the old agrarian law (before the Basic Agrarian Law wasenacted).

There are many differences between the two regulations. The differences are caused by:

1) The land law policy used by the two countries; 2) The geography and demography betweenthe two countries; 3) Land disputes in Indonesia which is more crucial rather than in Australia;4) more land in communal possession in Indonesia rather than in Australia.

Finally,the Governments Regulation No.36/1998 has to be reviewed in order to make it

more practical, and effective, give more legal certainty, and give more justice to community,

especially the local community in which the land is located. On the other hand, it is better for Australian government to give more legal security to landowner by giving more legal

requirements to someone to possess someone else land, because in the long run the population

becomes bigger and that makes land cases becomes more complicated.

Key words: Adverse Possession, Vacant Land or Abandoned Land

I. Introduction

Land should be used effectively to accelerate land productivity and to fulfil the basic

need of human beings as a place for living. In fact, there are still many lands in many places,

which are left vacant and considered to be useless land or abandoned land. It happens because

* Seminar and research report done at the Australian National University in the academic year 2003-2004

** A lecturer of Gadjah Mada University, faculty of Law. The writer wishes to thank Dr.Daniel Fitzpatrick, from the

Law School Australian National University, who has given important suggestions as well as corrections in support

of the completion of this paper.

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now land does not merely function as a place for living, but it tends to be a means of investment

and speculation, especially for rich people or capitalist ones. To eliminate this phenomenon,

Indonesia has promulgated a regulation in the form of government decree No.36 of 1998

concerning ordering and reusing abandoned land throughout the country.

In Australia, in such states as New South Wales (NSW), Victoria (Vic), Queensland

(QLD), South Australia (SA), Western Australia (WA) and Tasmania (Tas), there is a legal

doctrine of adverse possession to give rights to someone who possess someone elses land or

vacant land or abandoned land within the limitation period stated by statutes.

This research will study the difference between the two systems in dealing with how to

use land in an effective way. This research was done by way of library research and qualitative

analysis. The result of the research will be written in a form of paper, which consists of four

discussions. First, it contains an explanation about adverse possession in Australia. Second, it is

about Governments Regulation No.36 of 1998 in Indonesia. Third, the discussion involves

analysis. Finally, it sets out a conclusion. The result of the research, hopefully, will be useful for

land law reform in Indonesia.

II. Adverse Possession on Land in Australia

The concept of Adverse Possession

Adverse Possession is a right to possess a peace of land, which has been left

vacant. The possessor acquires a title to the land, which is good as against the whole world

after remaining in possession of land for the period specified by the legislation with respect

to limitation of action. The legislation varies in each state in Australia. The true owner of

land may recover it from the adverse possessor before the limitation period has run;


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afterwards the owners right of action and title to the land are extinguished and cannot be

recovered it from the adverse possessor.1 For example, Mr Y brought a piece of land in

1980, but he did not possess it. Then in 1981 Mr X possessed the land, which had left

vacant. If Mr Xs possession had passed the limitation period specified by the legislation

(12 years in NSW, WA, Tas, QLD; 15 years in SA, Vic), then in 1996 he gained a right of

ownership (Vic), and Mr.Ys right of action and title to the land were extinguished, unless

he evicted Mr. X before limitation period had completed.

Thus, in the common law system, the concept of adverse possession derives from

the concept, which says that possession is the root of title. Possession is a particular

relationship of control by a person over land. Whereas title is a bundle of rights

associated with that relationship of possession, or in other words, a group of rights that

result from possession but which survive its loss; this includes the right to possession. 2

Possession is also a right over land as everyone has a right to possess land. So everyone

who is in possession has a greater right than one who is out of possession and has no right.

He/she could exclude the whole world until another person could demonstrate the stronger

right, for example the true owner. So the concept of adverse possession comes from the

implementation of the law and is never concerned with any political matters. Thus, it does

not need a state approval or a state permission.

In relation to private land, in New South Wales, Queensland, Western Australia

and Tasmania, the period is 12 years3 and in Victoria and South Australia, the period is 15

years.4The consequence is that a title to land can be lost by adverse possession due to the

principle of limitation, the principle of fixing a finite time in which an action may be

1 Joycey G Tooher, et all, Introduction to PropertyLaw, 3rd edition , Australia: Butterworths, 1997, p 20.

2 M A Neave, at all,Property Law, Cases and Materials, 6th edition, Australia : Butterwords, 1999, p 111.

3 Limitation statutes : NSW: s 27(2); Qld: s 13; WA: s 4; Tas: s 10(2).

4 Limitation statutes: Vic: s 8; SA: s4.

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instituted. One thing that should be noted is that in the Northern Territory (NT) and the

Australian Capital Territory (ACT), title to land cannot be extinguished by adverse

possession.5

The concept of adverse possession is mentioned in 1980 Act Paragraph 8(1) Sch

1:

No right of action to recover land shall be treated as accruing unless the land is in

the possession of some person in whose favour the period of limitation can run;

and where under the preceding provision of this Schedule any such right of actionis treated as accruing on a certain date and no person is an adverse possession on

that date, the right of action shall not be treated as accruing unless and until

adverse possession is taken of the land. (Vic.)

It means that if registered proprietor wants to recover his land rights from the

adverse possessor, he/she must actually brings/ starts legal proceedings before the

limitation period comes to an end in order to stop the possibility of losing ownership to

adverse possessor. So, if registered proprietor does try to evict adverse possessor before

limitation period is complete, the adverse possessor then lose his right of possession. To

apply this concept, registered proprietor must not be aware of the adverse possessor,

because if there is an agreement between registered proprietor and adverse possessor, then

there is no adverse possession.

The principle of limitation is the exception to the principle of indefeasibility of

title by the Torrens System. It establishes the right of an adverse possessor to deprive a

registered proprietor of his or her title.

There are a number of reasons of policy in favour of the principle of limitation,

such as:

It is better that the negligent owner who has omitted to assert his right within the

5 Land Title Act (NT), s 198; Land Titles Act (ACT), s 5(a).


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prescribed period, should lose his right than an opening should be given to

interminable litigation;6

The principle encourages the use and development of land and makes more certain the

validity of title, thereby encouraging the alienability of land;7

A person who has long been in undisputed possession should be able to deal with the land

as owner.8

Holders of rights should not sleep on their rights; problems of proof become more difficult

the longer the period of time between the disputes arising and the action being heard;

the status quo should be recognised at the same stage, and there should be a certain

end to litigation.9

Adverse Possession against Crown Land

Adverse possession against Crown land (for example: State Land, statutory bodies

representing Crown, or municipal councils as the registered proprietor) varies from states

to states, but most of them are much longer than the ordinary land. In South Australia the

period is 60 years;10 while in New South Wales (Limitation Act 1969 ss 27:1) and

Tasmania the period has been shortened to 30 years.11In Victoria an intruder cannot gain

title by taking adverse possession against Crown land (Limitation of Action Act s.7), as

well as in Northern Territory (Land Title Act (NT), s 198) and Australian Capital Territory

( Land Titles Act (ACT), s 5[a]).

Adverse possession limitation period against Crown land is much longer than for

6 Sir Thomas Plumer MRin Marquis Chomondeley v Lord Clinton ( 1820) 2 Jac & W 1 at 139-140; 37 ER 527 at

577

7 Peter Butt,Land Law, Erskineville, NSW : Lawbook Co, 4 th edition, 2001, p.819-8208 Sir Robert Megarry and H.W.R. Wade, The Law of Real Property, 6th edition, London : Sweet & Maxwell

Limited, 2000, p1303

9 Jacson, The Legal Effects of the Passing of Time (1970) 7 MULR ,p.409

10 South Australia Co v City of Port Adelaide [1914] SALR 16

11 NSW, s 27(1) and s 27(4); Tas, s 10 (1) and s 10 (4),(5).

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private land, and in some States or territories like ACT, Victoria, and Northern Territory

does not exist at all because of the doctrine of tenure and the concept from Mabo.

The doctrine of tenure arose as a result of English common law being applied to

Australia, Crown becomes the universal ultimate owner of land and all interests had to be

granted by Crown. The concept from Mabo states that Crown has radical title and

absolute beneficial ownership. Radical title is ultimate, final title, and over lordship.

Absolute beneficial ownership means that it is not derived from anyone and has full range

of rights. The absolute title of the Crown is not merely confirmed to all land within the

colonies, but also to all uninhabited lands and foreshores. In some states, therefore, this

doctrine has been used to deny the possibility of adverse possession over Crown (i.e State-

owned) land.

Commencement of the Limitation Period

The limitation period commences from the time of action accrues. Section 8 of the

limitation Act 1958 (Vic), provides as follows:

No action shall be brought by any person to recover any land after the expirationof fifteen years from the date on which the right of actions accrued to him or, if it

accrued to some person through whom he claims, to that person.

Under the 1980 Act, the person claiming a possessory title must show either (1)

discontinuance by the paper owner (registered proprietor) followed by possession or (2)

dispossession of the paper owner. Discontinuance occurs when a person comes in and

drives out the others from the possession, while dispossession occurs when the person in

possession leaves the possession and is followed into possession by other persons. A

person claiming to have adverse possession must fulfil both factual possession and the

requisite intention to possess (animus possidendi). Possession is never adverse within the


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meaning of the 1980 Act if it is enjoyed under a lawful title. Therefore, if a person

occupies or uses land by licence of the owner with a paper title and his licence has not been

duly terminated, he cannot be treated as having been in adverse possession as against the

owner with the paper title.12

Requirements of Eligible Adverse Possessor

To be an eligible adverse possessor, ones should demonstrate:

1. Factual possession

Factual possession denotes an appropriate degree of physical control reflecting

acts of exclusive control (acts of ownership). He or she must perform actions

characteristic of ownership of land with the intention of enjoying the land to the

exclusion of the world at large. In order to determine whether there is a sufficient degree

of exclusive control, the particular circumstances of the case must be analyzed closely.

Thus, the occupation of premises evidenced by physical presence, by carrying out of

improvements or repairs or by the erection of buildings will constitute strong evidence

of possession.13

The factual control must be without consent of the owner. It means that adverse

possession must not be under a license from or a contract or some like arrangement with

the true owner. A caretaker, lodger, or tenant cannot be in adverse possession of the

property.14

2. Requisite intention to posses (animus possidendi)

Doing the following objective test, we can recognize the requisite intention to

12 Sackville & Neave,Property Law Cases and materials, 6th edition, Australia : Butterworths, 1999, p120- 121.

13 Adrian Bradbrook, et all,Australian Real Property Law, 3rd edition, Riverwood NSW : Ligare, 2002, p 634.

14 Joycey G Tooher, et all, Introduction to PropertyLaw, 3rd edition , Australia : Butterworths 1997, p 21.

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posses:

a. Intention to possess property;

b. Intention to exclude whole world including true owner.

c. Ifvacant block with intense future use, adverse possession require clear evidence

of two elements. First, possession for any period of time is prima facie evidence of a

right to possession of land. Second, possession at any time itself confers a right,

which is good against anyone who cannot show a better right to possession. Thus

possession itself is an enforceable property right, even before the termination of the

limitation period. Once the limitation period terminates, the doctrine of adverse

possession simply means that possession becomes legal ownership.

Adverse Possession and the Torrens System

In Australia there are two systems of title to land, which exist side by side: the

general law system (Common Law system) and the Torrens system. Whilst there are many

differences between the two systems, the most important difference is that registered title

in Torrens title is much stronger than that in common law system. In Torrens, registration

itself gives good title, even though the underlying transaction was void or legally defective.

An exception occurs when the registered proprietor has himself committed fraud.

Therefore, with respect to the Torrens System land, the register is intended to provide

certainty of title. This principle is called indefeasibility of title. The Common Law

system, which is considered to be the old system, confirms the Nemo Dat rule, which

says that a purchaser will never obtain a better title than the vendor has. So, if the

underlying transaction was legally defective, a good faith purchaser will never be entitled

to obtain the land title. Another difference is that the title to land under the general law is


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transferred by deed under seal, whereas title to land under the Torrens system is transferred

by means of an entry in a public record, known as the register.

Title to land under Torrens system can be acquired by adverse possession in both

New South Wales and Victoria and the general principles of the acquiring apply equally to

land under the common law system. So, the principle of adverse possession remains the

exception of the principle of indefeasibility of title in the Torrens system. However,

adverse possession to be effective under the Torrens system it is subject to additional

requirements. For instance; in NSW, since 1979 an adverse possessor who has been in

possession of a whole parcel of land for the statutory period may not only become the

registered proprietor, but also has rights against both any third party and against the

original owner of the land (see Real Property Act Pt VI A ss 45B-45G inclusive). So that

title to small areas of land cannot be acquired by adverse possession (Real Property

Act 45B:1).

Another feature is that because registration is so important, the adverse possessor

should register his/her right of the land after completing the statutory period in order to get

the benefits of the land full ownership. This is a necessary precaution because otherwise

his/her interest can be lost as against a purchaser from the still registered proprietor who

in turn acts without fraud and registers his/her apparent interest of the land (Real Property

Act s 45D: 4). Upon the registration in good faith of the right of the purchaser, the time of

the adverse possession commences to run afresh (start again from zero) against the new

registered proprietor who may recover the land at any time before the limitation period has

again expired. However, if there is a fraud, for example a purchaser colludes with a

registered proprietor to defeat the rights of an adverse possessor, the transfer of title would

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not effect the rights of the adverse possessor, and time would continue to run as though the

transfer of title had not taken place.15

Below is an example case to clarify the above explanation. In 1980, in NSW, a

registered proprietor left his land vacant. In 1981 some one else possessed the land. In

1993 the registered proprietor sold the land. If the adverse possessor had not registered the

land, he would lose his interest against the purchaser if that purchaser had acted without

fraud as the new registered proprietor. With a transfer of title without fraud, the time of the

adverse possession would start afresh in favor of the adverse possession and against the

new registered owner.

In Australia, actually 95 % of private land is now Torrens land. According to the

Torrens System, acquisition of title by adverse possession cannot be applied over Crown

land, statutory bodies representing the Crown, or municipal councils as the registered

proprietor (Real Property Act s 45D[3] [NSW]).

III. The Indonesian Context: the Governments Regulation of the Republic of Indonesia on

Abandoned land (Governments Regulation No.36 of 1998)

A. Concept of abandoned land

A land is considered to be abandoned if the titleholder does not use the land

properly that is, it is not suitable with the nature and the objective of the land title as

well as with the regional land planning; or does not take care of it including leaving the

land vacant for a certain period of time as stated by the minister of land. The

consequence is that the state can revoke the owners land rights and the land then

remains state land (Chapter III, s.3 of Governments Regulation).

15 Joycey G Tooher, et all,Introduction to PropertyLaw, 3rd edition , Australia : Butterworths, 1997, p.31


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This regulation applies to both private land titles, such as land ownership, land

right of exploitation, land right of building, land right of use, and state land which is

used by government institutions, regional governments, other bodies to implement the

right to authorize of the state in the form of right of controlling, as well as land in which

has right of possession upon state land (Chapter II).

A piece of land will be declared vacant through a certain kind of procedure,

which is stated in Chapter IV of this decree. A part of a parcel of land can be stated as a

vacant land, and only that part of land then becomes the state land (Chapter III, s 5 (2), s

6(2),7 (2), 8(2).

B. Legal reasoning

A principle of the Indonesian land right states that all land rights have social

functions, which means that land must not be used merely for the benefit of the owner,

but should be used in such way as to benefit the people, the state, as well as the owner

(Article 6 of Basic Agrarian Law). The consequence is that the owner as well as the

person with secondary rights should ensure that the land is well taken care of and

prevent the land from being damaged and increase its fertility (Article 15 of BAL).

Otherwise the state can revoke the land rights (Article 27, 34, 40 of BAL).

In fact, there are still many parcels of land in many places that are left vacant,

which will obstruct the sustainable development of the country, as a result of the

densely populated areas of land and the increasing need of land to develop the country.

In rural areas, the phenomenon obstructs crop production, whereas in urban

areas, it stimulates slum areas, which arouses social problems and reduces land use

efficiency, and is against the principle of social function of land.

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As the causes of vacant land are varied, the regulation states that:

If it is caused by the owners economic pressure, the land cannot be stated as a vacant

land, and the owner will receive a guidance to use the land effectively;

The declaration of land as vacant must be written by the Land Minister or on behalf of

the Minister.

The landowner must be given a wide opportunity to use the land effectively in order for

his/her land not to be declared as a vacant land.

C. Procedure of ordering land, which is left vacant (Chapter IV)

Based on Ministerial or head of Regional Land Agencys order, as well as a community

report, Regional Land Agency identifies land, which is left vacant. Land

identification consists of subject, object, and conditions of a land, which is left

vacant. In the process of identification, the owner must give honest information about

the land. The identification should be based on reasonable period of time, which is

stated by the Minister of Land.

The Minister of Land forms an evaluation team that consists of representatives of

institutions related to the land use and headed by Head of Regional Land Agency to

decide whether a land can be stated as a vacant land. This team then submits the

report to Head of Provincial Land Agency, followed by necessary treatments over the

land.

If a vacant land is a result of economic pressure of the landowner, the owner will

receive a guidance to use the land effectively proposed by the Head of the Regional

Land Agency. A technical institution related to the land use under regencys

government coordination undertakes the guidance


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If vacant land is a result of the landowners negligence to use the land properly, the

Head of the Regional Land Agency proposes to the Head of Provincial Land Agency

to give a notice to the landowner to use his/her land properly within 12 months.

Otherwise the Head of Provincial Land Agency will issue the second notice to the

landowner for another 12 months. If the landowner still ignores the second notice,

the third notice will be issued. If within another12 months after receiving the third

notice the landowner still do not maintain the land properly, the head of Provincial

Land Agency then will report it to the Minister of Land and propose it to be a vacant

land. Before issuing a letter of decision, the Minister gives a chance to the landowner

to alienate the land within three months through auction.

Provision of the 2nd and 3rd procedure cannot be applied over lands in dispute.

D. Managing a vacant land

Land, which is already stated to be vacant land, automatically becomes state

land, and the owner then receives compensation stated by the Minister. The owner, then,

has no rights to use the land, and must transfer the land to another party chosen by the

Minister. The compensation is based on the purchasing price. Any physical utilities or

building on the land are considered. The compensation is the responsibility of the

second owner. (Chapter V)

IV. Analyses

The Concept

In dealing with how to use land in an effective way Australia uses adverse

possession, which gives right to intruders to possess someone else land without the

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consent of the true owner.This system looks over the adverse possessor in dealing with

the limitation period stated by statutes. While Indonesia promulgated the government

decree No.36 of 1998 to encourage the true owner to use his/land in an effective way, and

to be consistent with the nature and the objective of the land right as well as the regional

land use planning. This system looks over the true owners period of time stated by the

Minister of Land. The time period has been started when the true owner has left his/her

land vacant or has not take care of it properly, which can be known through land

identification process done by Regional Land Agency based on Ministerial or head of

Regional Land Agencys order, as well as a community report.

In Australia, adverse possession is considered to be legal, and merely dealing

with civil law matters. It gives an adverse possessor right to possess, to exclude the whole

world until another person demonstrates the stronger right, and to alienate the possessors

right to another party before the limitation period has completed.

By contrast, adverse possession is considered to be an illegal deed in Indonesia

and remained as illegal occupation. Actually, adverse possession in Indonesia has existed

for along time even before the Second World War, especially in regard to large

plantation, which was causing conflicts endangering the safety and public order. To

overcome the problem a civil court action did not prove sufficient. Therefore, some

regulations16also add the possibility to apply criminal punishment to the wrong doer.17

Although according to Government Regulation No. 51 of 1960 the adverse

possessors problem does not always come to criminal justice, it can be dealt with

another ways, such as relocating the adverse possessor or vacating the land by force. So,

16 Ordinance of June 8, 1948 concerning illegal occupation of lands, S.G.110/1948; Emergency Law No.1 of Oct.

1, 1956; Government Regulation No. 51 of 1960.

17 Budi Harsono, Sudargo Gautama, Agrarian Law, Survey of Indonesian Economic Law, Bandung,: Padjadjaran

University Law School, 1972, p. 17


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even though adverse possession in Indonesia is considered to be illegal(has no legal

basis), the solution should begin with negotiation between the parties.

In dealing with vacating land by force, the adverse possessor has no right to

claim compensation for movement, but property on the surface of land. If there is a

compensation for movement it is merely the regional governments policy.18

Indonesian land law also uses the principle that possession is the root of land

title and considered to be an interest of land. Therefore in Indonesian context, this

possession here is the first possession of a free land (land on which has no title, or no one

owns it), or right of possession given by the state or customary community. For instance,

in distributing land titles, the government will give priority to the local community or

some one who possess the land. In granting land rights the government also consider the

period of time used by the first possessor in possessing and using the land in a good faith.

So this is different from possession in the way of adverse possession.

Adverse possession in Australia often occurs upon lands between boundaries or

by mistake. In dealing with boundaries, within the limitation period, the land remains

under the adverse possessors right. If before accomplishing period the true owner could

prove the right boundaries, the excessive land than should be given to the true owner.

Therefore in some cases, adverse possessors prefer to give the excessive land and deal

with what it is stated in the land certificate over the limitation period.

In dealing with by mistake, for instance, Mr. X bought a land of block no.1,

but by mistake without consent he possessed a land of block no.2. If he has in possession

of the land completing the limitation period, he automatically became the owner block

18 Boedi Harsono,Hukum Agraria Indonesia, Sejarah Pembentukan UUPA, Isi dan Pelaksanaannya, (Indonesian

Agrarian Law, History of Issuing Agrarian Decree, Its Content and Implementation), Yogyakarta : Djambatan ,

2003, p.112-117

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no.2. Otherwise, the true owner has right to claim his/her land before the limitation

period has completed.

Implementation of the regulations

Unlike in Indonesia, adverse possession in Australia is not considered to be a big

problem because of many reasons, such as: the land is huge whereas the population is

small; the case of adverse possession does not often take place as a result of community

welfare. Therefore, to date, there is not any specific regulation that rules how to use

land effectively and land cases are not crucial. So people can still pursue land for living

without taking adverse possession, esp. dealing with plantation.

Located in the smallest continent, Australia is the worlds sixth largest country at

about 7.7 million square kilometers. Its population is approximately 19 million. The

small population in proportion to the size of the country results in a population density of

2 persons per square kilometer. Australians have high rate of home ownership. By

contrast, Indonesias land is 1.8 square kilometers with 235 million people, known as the

fourth most populous country in the world. This condition forces the government to rule

the land effectively. In fact the implementation of the decree in dealing with the process

of deciding a vacant land, the government decree no.36/1998 seems very complicated and

tends to be ineffective. The limitation period is not definitely mentioned. Notices,

guidance, remedies to landowners as well as treatment to the land give opportunities for

the landowners to neglect the warnings. That is the reason that, to date, there is no

jurisprudence related to the vacant land decision. Hence, in using land effectively, people

cannot use the vacant land automatically but he/she should propose a license of

possessing land to the government after the land has been stated to be a vacant land and


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considered to be a state land, and gives remedy to the previous owner. A positive aspect

of this regulation is that land owner has been given a very strong land title although

Indonesia does not use the principle of indefeasibility of title as a result of its land title

registration system which uses negative publication system- though not purely negative

one. A negative aspect of this regulation is that it has a tendency to secure capitalist

people, as those people own many of abandoned land, and gives little opportunity to

ordinary people to use the land.

As a result of semi-negative publication system, land title certificate becomes

a means of strong evidence, not absolute one, toward physical and legal data of a peace of

land. It means that as long as there is no other evidence prevail the data, data in the

certificate remains true (article 19 (2c), 23,32, 38 of BAL). So, a certificate landholder

still always has a possibility to become a defendant from a plaintiff. To give legal

security to the good-faith owner, article 32 (2) PP 24/1997(government decree) about

Land Registration states that other party will lose the opportunity to claim a land over a

good faith owner who holds the land certificate and has acted actual possession of the

land for at least 5 years, if within this 5 years commencing the certificate he/she does not

send a notice of objection to both the owner and the head of the Regional Land Agency.

Article 32(2) PP 24/1997 has two objectives:

To maintain negative publication system;

To give legal security as well as legal certainty to a good faith certificate landholder who

has acted in active possession of land.

A long time ago, under the Dutch Land Law, the weakness of negative

publication system was overcome by acquisitieve verjaring or adverse possession.

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Because the adverse possession brought negative impact for the community, which was

causing conflicts endangering the safety and public order, then, Indonesia does not base

the law on western law any longer, but prefers to use adat law, which uses the institution

of rechtsverwerking ( see: Supreme Court Decisions dated 10-1-1957

No.210/K/Sip/1955; 24-9-1958 No.329/K/Sip/1957; 26-11-1958 No.361/K/Sip/1958; 7-

3-1959 No.70/K/Sip/1959. It means that if a landowner leaves his/her land vacant in

certain period of time, and then someone else possesses it in a good faith, this brings

consequence to the landowner to lose his/her right to claim over the land.19 This principle

is also mentioned in BAL article 27, 34, 40, that land rights can be revoked because the

land is being abandoned.20 This principle also mentions that someone cannot

automatically possess the abandoned land, but he/she should get a permission from the

adat community, where the land is located, represented by the adat functionaries or

kepala adat( Adats Chief). This principle also has weaknesses, that is, because it is

based on adat law, which is usually unwritten, the limitation period of time is also

uncertain depending on different kinds of adat law used by different regions. Now, in

many cases, the certificate of land title becomes more administration evidence rather than

factual evidence, and the implementation of the government decree no.36/1998 seems

ineffective.

So, the main differences between acquisitive verjaring or adverse possession

and rechtsverwerking are : 1) the first principle looks over the next possessors

limitation period of time in possessing the land, while the second one looks over the

landowner limitation period in abandoning the land; 2) the first principle does not need a

19 Boedi Harsono, Hukum Agraria Indonesia, Sejarah Pembentukan UUPA, Isi Dan Pelaksanaannya (IndonesianAgrarian Law, History of Issuing Agrarian Decree, Its Content and Implementation), Jakarta : Djambatan, 2003,

p.67

20 Explanation of article 32(2) PP 24/1997


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statement from the government or local chief community for a parcel of land to be a

vacant land, while the other one does; 3) the first principle does not need permission from

a third party for the possessor to possess a vacant land, while the other one does; 4) the

first principle needs a possessor to revoke the landowner right to claim his/her vacant

land, while the other one does not.

So, in Australia, the implementation of adverse possession acts seems simpler as

the adverse possessor can automatically possess a vacant land without any influence of

the government. Actually this procedure prevails the principle of indefeasibility of title

used by Australian law as a result of land title registration by Torrent System.

If the Australian government would like to secure landowners with a good faith,

and to keep the indefeasibility of title consistency, it should ask more requirements to

possess someone else land, for example the land has been abandoned for a certain period

of time, the adverse possessor does not know the true owner, etc. Otherwise, bad

experience like Indonesia will take place in Australia.

V. Conclusion

In eliminating the growth of vacant land, both Indonesian and Australian Land Law

give opportunities to other people to use the vacant land effectively, and give sanction to the

landowner who abandoned his/her land in the form of revoking the right to claim over his/her

vacant land, within the termination of a period of time. Australian Land Law uses the concept

of adverse possession, which is stated in many statutes that vary amongst states. While

Indonesia uses the Government Decree No.36 of 1998 about ordering and reusing abandoned

land throughout the country, which is based on Article 5(2) UUD 1945(Indonesian

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Constitution) jis UU No.5/1960 (BAL); UU No.5/1974 (Act of Regional Government); UU

No.24/1992 (Act of Landscape Management); PP No.6/1988 (Government Decree of

Regional Coordination on Vertical Institution Activities); PP No.24/1997 (Government

Decree of Land Registration); PP No.40/1996 (Gov. Decree of Land Rights). The differences

are:

In revoking the owners right to claim his/her vacant land, the principle of adverse possession

need another person(s) to possess the land in a certain period of time, whereas the

Government Decree No.36 of 1998 does not;

The principle of adverse possession looks over the adverse possessors limitation period of

time in possessing the land, whereas the Government Decree No.36 of 1998 looks over

the landowner limitation period in abandoning the land;

The first principle does not need a statement from the government for a parcel of land to be a

vacant land, while the other one does;

The first principle does not need permission from a third party (government or chief of the

local community) for the possessor to possess a vacant land, while the other one does;

The procedure under the Government Decree No.36/1998 seems more complicated than that

under adverse possession;

Government Decree No.36/1998 is a special regulation merely in dealing with vacant land,

whereas in Australia the principle of adverse possession also deals with boundaries and

possession by mistake. Although in some cases it also deals with vacant land, there is no

specific regulation ruling vacant land and how to treat it effectively.

These differences are caused by many factors such as:


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The land law policy used by the two countries.

In Indonesia, Governments role in land law matters is much more dominant rather than

in Australia

The geography and demography between the two countries are very different

Land disputes in Indonesia are more crucial rather than in Australia

There is more land in communal possession in Indonesia rather than in Australia

Indonesia used to use the principle of adverse possession for a long time ago under the Dutch

Land Law system. Because it was considered to be ineffective to be used, Indonesia does

not use it anymore. On the other hand, Australia still uses it.

VI. Suggestion:

The Government Decree No.36/1998 has to be reviewed in order to make it more practical,

and effective, give more legal certainty, and give more justice to the community,

especially the local community in which the land is located. It is also important to

promulgate a regulation concerning technical mechanism of the decree.

It is better for Australian government to give more legal security to landowner by giving

more legal requirements to someone to possess someone else land, because in the long

run the number of population becomes bigger and that makes land cases becomes more

complicated.

BIBLIOGRAPHY

Books

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Boedi Harsono, Hukum Agraria Indonesia, Sejarah Pembentukan UUPA, Isi DanPelaksanaannya ( Indonesian Agrarian Law, History of Issuing Agrarian Decree, Its Content

and Implementation), Jakarta : Djambatan, 2003.

Bradbrook, Adrian, et all,Australian Real Property Law, 3rd edition, Riverwood NSW : Ligare,

2002.

Butt, Peter,Land Law, 4th edition , Erskineville, NSW : Lawbook Co, 2001.

Gautama, Sudargo and Harsono Budi, Agrarian Law, Survey of Indonesian Economic Law,

Bandung : Padjadjaran University Law School, 1972.

Neave, M A, at all,Property Law, Cases and Materials, 6th edition, Australia : Butterwords,

1999.

Megarry, Sir Robert and Wade H.W.R, The Law of Real Property, 6th edition, London : Sweet &

Maxwell Limited, 2000.

Tooher, Joycey G, et all, Introduction to PropertyLaw, 3rd edition, Australia : Butterworths,1997.

Journal

Jacson, The Legal Effects of the Passing of Time , 7 MULR, 1970.

Case

Sir Thomas Plumer MR in Marquis Chomondeley v Lord Clinton ( 1820) 2 Jac & W 1 at 139-

140; 37 ER 527 at 577.

regulation on abandoned land

Documents