AGRARIAN LAW

Example Case:
In order to fulfill the community needs and also to fulfill the government targets in providing 1
million units of apartment PT Duta Inda (PT. DI) developer who build Casablanca East Residences
intends to build subsidized apartment in the Kemanggisan Region, west Jakarta. The apartment
will be built on the l​and area of 10 hectares with a selling price starts from Rp90 million until
Rp114 million that will be marketed to people who have incomes up to Rp4.5 million.

Question
1. a. Before building the subsidized apartment, what are the things that should be considered
by PT. DI?

Before building the subsidized or even just an apartment, the developer should consider
the land ownership status where the apartment will be built. Article 17 Law No. 20/2011
stated that an apartment could be built upon: HM, HGB/HP over state land, and HGB/HP
over HPL. The article also require the developer to complete the status of the and if the
apartment will be build upon HGB/HP over HPL.

b. According to the applicable law, what permits that should be obtained by PT. DI before
performing the acquisition of land in that location? What is the legal basis?
Based on Article 17 of Law no. 20/2011, an apartment could be built upon:
1. Right of ownership (Hak Milik)
2. Right of building (HGB) or Right of use (Hak Pakai) over state land
3. Right of building (HGB) or Right of use (Hak Pakai) over Right of management (Hak
Pengelolaan).

c. Who is authorized to issue the permit (include legal basis)? How long is the validity period
of the permit (include legal basis)?

The permit will be issued by the OSS (Online Single Submission) -> Article 9 (1) PMATR no.
14/2018. The Casablanca East Residence can be categorized as HGB. The validity period is at
least 30 years and can be renewed accordingly (art. 29 (1) Government Regulation no. 40/1996)
2. ​a. In the location that will be build the subsidized apartment, there are several parcels of
land with the following particulars:

-HGB land owned by PT. Aneka Persada on the area of 3 ha

-Former land of the Hak Milik Adat belong to H. Bose on the area of 4 ha
-State land on the area of 2 ha
Describe briefly the complete procedure that must be taken to their respective areas of land
so that PT. DI can legitimately control the land

1. Area 3 ha yang dimiliki oleh PT Aneka Persada

Transfer of right
PT DI ask PT AP to do transfer of right by doing a (TRADE/ jual beli) because the status
of PT AP land → HGB , made in front of the authorized officials (PPAT) . PPAT made
Akta Jual Beli. → HGB registered at t Jakarta Land Office
→ issued HGB Certificate on behalf of PT DI

2. Area 4 ha dimiliki oleh H Bose

Release of right and Application and Granting of Right
→ negotiation
→ consensus → pay compensation
→ the status of land will be ​tanah negara​ (state land)
→ PT DI do application HGB regarding the area of land to Kepala Kanwil in Jakarta
Province
→ Kepala Kanwil → giving decision
→ HGB registered at Jakarta Land Office
→ issued HGB Certificate on behalf of PT DI

3. Area 2 ha of State land

Application and Granting of Right
→ ​Application to Kanwil in Jakarta province
→ Kanwil → decision
→ HGB registered at t Jakarta Land Office
→ issued HGB Certificate on behalf of PT DI
b. By law, when the expropriation (pencabutan hak) can be done? Based on the case above
whether the expropriation (pencabutan hak) can be carried out if there is a party who do not
want to hand their land over to PT. DI? Explain briefly and include the legal basis of your
answer!

The expropriation of land can be done if the land is going to be used for the public interest. It is the
last effort to obtain rights of land. (Law no.2/2012, article 18 BAL). The government will give
compensation to the party whose land is expropriated. If someone doesn’t want to hand their land
to PT. DI, the expropriation can still be carried out because in this case PT DI want to build the
Casablanca East Residence in order to fulfill the community needs and the government targets.
This situation is regulated in the BAL article 18.

3. A. What types of the land title which are most appropriate for the purposes of PT. DI and
how long is the validity period of the right (include legal basis)?
Rights of Building (HGB) with the period if 30 years (article 29(1) Gov. Regulation no.40/1996)

b. Who is authorized to grant the land title according to the size of the land that will be
controlled by PT. DI (include legal basis)?

Pemberian HGB untuk Badan Hukum dalam Perka BPN 2/2013

Kepala Kantor Pertanahan ≤ 20.000 m​2 Pasal 4

(Kab/Kota) huruf b

Kepala Kanwil BPN (Prov) > 20.000 sampai 150.000

m​2 Pasal 9
huruf b

Kepala BPN > 150.000 m​2 Pasal 13

v 1 Hektar = 10.000 m​2

Kepala Kantor Wilayah Provinsi Jakarta

Area : 10 hectares
Kepala Kanwil BPN Jakarta (Article 9(b))
c. If the land granted what is the evidence of such granting and what are the obligations of
the parties?

Certificate. Bagian-bagiannya : Copy of Land Book and Measure Letter (Surat Ukur)
Obligation of Parties = (???)

1. Constitutive requirement in fulfillment of Right

2. . For the purposes of proof

4. In connection with the loans construction that will be given to PT. DI, Bank Tabungan
Negara as lender ask for collateral in the form of security interest (Hak Tanggungan) on
land and building of apartment that will be built.
a. According to UUHT, what should be done so that the building that will be built by PT. DI
can be encumbered by Hak Tanggungan?
Article 27 of UUHT:
-Apartment which is built upon land with HM, HGB, and HP given by the state
-Right unit of apartment (HSMRS) which is built upon land with HM, HGB, and HP

b. What is the principle which allows the encumbrance of Hak Tanggungan?

HT is an accessory of any principal agreement which creates indebtedness (accessoir). The
existence, deletion, and enforcement of it directly depends on the payment of the loan secured.

c. In granting the HT must fulfill the specialties requirement. What are those?
In order to meet specialty aspect, according to Article 11 Section 1 of UUHT, the APHT
shall mention:
-Name and identity of the parties who provide and hold HT
-The domicile of each interested parties
-Clear indication of debt and the secured debts
-Value of the tanggungan
-Clear explanation of the object of HT

d. What is the evidence of HT? Who has to draw such evidence?

As the evidence of HT, Land Office issues a certificate of HT, which contains:
 -Copy of land book of HT
-Copy of deed of HT which is bound into one in a document cover (Minister of Agrarian
Affairs Regulation N0. 3/1996)
To give the same executorial strength with the court decision, certificate of HT includes
phrase (irah-irah) on its cover “In the name of Justice Based on the Belief in the Only God
Almighty”.

e. Where do the HT registrations should be done and to fulfill which requirement?

The registration of HT is conducted in the Land Office through:
-Making of book of HT
-Recording in land book the land right as the object
-Copy the record in the certificate of HT

f. If by the land office on May 25th 2010 the file registration of HT is stated complete, when
is the creation of HT?
The date of the land book of HT is the seventh day after receiving the complete
documents required for registration. If the seventh day falls on a holiday, the land book is given on
the date of the next working day. On that date, HT is legally created. In this case, the creation of
HT is on the 1st of June 2010.

g. What is the evidence of the creation of HT and mention the parts

As the evidence of HT, Land Officer issues a certificate of HT, which are:
-Copy of land book of HT
-Copy of deed of HT which is bound into one in a document cover (Minister of Agrarian
Affairs Regulation N0. 3/1996)
To give the same executorial strength with the court decision, certificate of HT includes
phrase (irah-irah) on its cover “In the name of Justice Based on the Belief in the Only God
Almighty”.

h. Whether due to the creditors if the HT is not registered?

Theoretical Knowledge
1. a. Explain briefly what is owned privately and owned collectively in the apartment
concept?
There are two main elements of the ownership system of a unit of apartment, which are:
 1. Individual ownership, which can be obtained separately
2. Joint ownership, which can be jointly obtained.

b. Clarify land title upon which an apartment can be constructed

Based on Article 17 of Law no. 20/2011, an apartment could be built upon:
4. Right of ownership (Hak Milik)
5. Right of building (HGB) or Right of use (Hak Pakai) over state land
6. Right of building (HGB) or Right of use (Hak Pakai) over Right of management (Hak
Pengelolaan).

2. a. Prove that the purpose of land registration in our country is legal cadaster

→ the purpose of land registration in the form of guarantee legal certainty and rights

Rechts Kadaster Fiscaal Kadaster

Pendaftaran tanah untuk menjamin kepastian Pendaftaran tanah untuk

hukum atau kepastian hak. memungut pajak tanah.
(levy land tax)

Tujuan pendaftaran tanah yang dianut Indonesia: Gabungan rechts & fiscal
cadaster (Pasal 3 PP 24/1997). (Joint between rechts and fiscal cadaster)

b. Describe the weakness in the negative public system? And explain briefly the provisions of
Perda 24/1997 to overcome the weakness in the negative public system (include legal basis)

Sistem Negatif Sistem Positif

Passive executing officials, seeking The executive officer is active,

formal truth: take it for granted when looking for material truths:
the files are complete. researching the field carefully
and seeing if it fits the file.
 If there is an error, the decision of the If there is a mistake, the
judges in the certificate can be changed information in the Certificate
by the Land Office. cannot be changed.
→ People who actually have the right to → People who are actually
remain protected. entitled to lose their rights.

Registration does not make a person who Registration makes a person

obtains land from an unauthorized party
becomes the new right holder. The
principle of nemo plus juris applies:
people cannot surrender or transfer
rights beyond what they have.
whose name is registered, has
absolute rights and cannot be
contested, even though it is later
proven that he is not entitled to
become the right holder.

Indonesia adheres to the "Positive Negative Tendency System".

That is, if there is a mistake in the land certificate and there are people who
sue, the information in the certificate can still change (negative). However,
the Land Office as the executive officer was active and researched carefully
in checking files. And after 5 years the Certificate is issued, it has provided
absolute protection against the name of the owner listed in the Certificate
and cannot be contested (positive tendency).

3. Explain briefly the function of land registration in order to

a. Sell and purchase land
- To strengthen proof
- To expand proof
b. Title application
- As a constitutive requirement for the birth of a right
- For the purposes of proof
c. Application of hak tanggungan
- As a constitutive condition for the birth of a Hak Tanggungan
- For evidence purposes
Jual Beli tanpa dihadapan PPAT
jual beli tanah di bawah tangan (tanpa dibuat dalam akta otentik) tetap sah dan mengikat para
pihak yang bertransaksi sepanjang memenuhi semua elemen yang disebutkan dalam Pasal
1320 KUHPer. Akan tetapi guna keperluan pendaftaran dan proses balik nama sertifikat tanah
di Kantor Pertanahan, maka jual beli tersebut harus dibuktikan dengan akta yang dibuat oleh
PPAT.

Lembaga Konsinyasi

konsep konsinyasi tanah, ketidakjelasan status tanah (sengketa kepemilikan tanah, keberadaan
pemilik tanah yang tidak diketahui, tanah yang diletakkan sita, tanah yang dijadikan jaminan
di bank) justru dijadikan alasan untuk menitipkan uang ganti rugi ke Pengadilan Negeri.

Ketentuan Pasal 17 ayat (2) Keputusan Presiden Nomor55 Tahun 1993 tentang
Pengadaan TanahBagi Pe-laksanaan Pembangunan UntukKepen-tingan Umum
menentukan bahwadalam hal tanah, bangunan, tanaman ataubenda yang berkaitan
dengan tanah yangdimiliki bersama oleh beberapa orang,sedangkan satu atau
beberapa orang dari mereka tidak dapat ditemukan, makaganti kerugian yang
menjadi hak orang yang tidak dapat diketemukan tersebut, dikonsinyasikan di
pengadilan negeri setempat oleh Instansi Pemerintah yang memerlukan tanah.

Hak atas tanah yang kuat dan Hak atas tanah yang mutlak

mutlak " ( ​indefesiable​) atau tidak dapat diganggu gugat, atau ada yang mengatakan
"absolut". Jadi makna kuat artinya tidaklah mutlak atau masih dapat diganggu gugat

Berkaitan dengan kekuatan pembuktian yang "kuat" sertifpikat hak atas tanah ini
dikatakan oleh ​Maria SW Sumardjono​, kuat artinya "harus dianggap yang benar
sepanjang tidak dapat dibuktikan sebaliknya di pengadilan dengan alat bukti yang lain".
Demikian juga yang dikatakan oleh ​Boedi Harsono​:
Bahwa surat-surat tanda bukti hak itu berlaku sebagai alat pembuktian yang kuat
berarti, bahwa keterangan-keterangan yang tercantum didalamnya ( oleh hakim )
sebagai keterangan yang benar, selama dan sepanjang tidak ada alat
pembuktian yang lain yang membuktikan sebaliknya. Dalam hal yang demikian
maka pengadilanlah yang akan memutuskan alat pembuktian yang benar.
Dagang
Komisaris & Direksi
1. What are the authorities and obligations granted by the Company Law to the Board of
Commissioners?
2. What are the authorities and obligations provided by the Company Law for the BoD?
3. Can the Board of Commissioners carry out management actions of the Company?
4. Director A has been appointed as the Director of Company X through the GMS in the year
2019. In 2014, Director A was the Director of Company Y which was declared bankrupt. What are
the legal consequences to Director A and to the actions done by Director A during his time as the
Director of Company X?
5. “Commissioner A was appointed to be the President Commissioner in Company X through the
General Meeting of Shareholders in 2019. In 2014, Commissioner A was a commissioner in
Company Y which was declared bankrupt. What are the legal consequences to Commissioner A
and the actions of Commissioner A while he is a commissioner in Company X?”
6. Can a Director be personally liable for the losses of a company? Are there exceptions to a
Director’s personal liability to a company?

1. How do legal relationships in a commercial paper end?

2. How is the transfer of movable intangible goods done according to the Civil
Code?
3. What are the other forms of commercial papers outside of Commercial Code and
where are they regulated?
 COMMERCIAL LAW

QUESTIONS FOR COMMERCIAL LAW FINALS 2017

1. What is the main characteristic of PT?

UUPT Article 1 (definition of PT)
-A subject of law because they're a whole legal entity (separate existence in the means of
rights and obligations from its investor and managers (Article 3 UUPT)) > only defines the
asset of company not liability
-Limited liability > has no connection with forms of legal subject, only liable as far as the
amount of money/share they decided to contribute to the PT
-Association of capital
-Capital of PT must be issued into shares (saham) > Shareholders ownership of interest
are easily transferable
-PT must comply with UUPT

2. What is the legal reasoning of requiring every company to conduct

bookkeeping?
Pasal 6 KUHD & 1131 ICC > so a third party can know the rights and obligations a
company has

3. Can bookkeeping of a company always be used to prove a company's

profitability?
Yes, both profit and losses can be proven by bookkeeping.

4. Why a forwarding agent (ekspeditur) can be classified as an agency?

Element of agency (1792 ICC): principal (pemberi kuasa) and agent (penerima kuasa),
contract, agent is doing business on behalf of principal, agent will be doing business
under or not under their own name
> forwarding agent: doing business under the instruction of principal but using agent's
name
> traditional agency (lastgeving) v. forwarding agent: both of them not doing business for
their own, but forwarding agent is a principle who acts as an agent to someone else
>forwarding agent commands the shipper/carrier to ship/carry the item that belongs to the
principal.
5. What is the main difference between a commission agent (komisioner) and a
broker (makelar)
A broker doesn’t have direct legal relationship with the third party because in doing the
activities, the broker mainly similar with traditional agency (doing on behalf of the
principle)
> commission agent have direct relationship with third party because in doing the
activities they do it under their own name and the third party remains oblivious to the
existence of the principal
> commission agent has retention rights of goods towards principal because a
commissioner acts on behalf of themselves and all costs will be theirs to bear, i.e. jastip

6. Why does a commercial paper is considered to be a formal contract as well as

property?
-formal contract: it has to fulfill all requirements of a formal contract for it to be a
commercial paper, it has the rights and obligations of the parties on it (Art 100 & 178)
-property: because it is easily tradable and the right of the owner is embedded to the
commercial paper only evident when the commercial paper stays with the owner

7. Do you agree that shares can be classified as a commercial paper?

Yes, relate to characteristics of commercial paper

8. ​ nd how is it different from ​lastgeving​? How do they relate to the

​What is ​volmacht a
commonly-known power of attorney? Is a power of attorney a form of contract?

9. ​Are property related companies like Ray White intermediary agents? Elaborate the
relationship between them, their principle and third parties.

10. ​What do you know about Limited Liability Companies? Explain and associate
with:
a.​ ​Definition and legal basis
Definition and legal basis exists in Article 1 UUPT

b.​ ​Authority and responsibility of the organs of PT

Organs of PT:
-Dewan Komisaris: Articles 108-121 UUPT
 -Direksi: Articles 92-107 UUPT

c.​ ​Stock / Capital

Articles 31-62

11. ​Andika, Putra, and Sudarman, three friends want to build a moving business ​in retail.
They named the business with the name "APSukses" and shaped Limited liability
company. However, they did not understand the mechanism of establishing PT. As a
legal expert, you are asked to help explain the process the establishment of a PT
along with its legal basis!

15. ​Limited Liability Company is a legal entity which is a capital alliance. What does it
mean and how many types of capital are based on the Company Law?

16.​ ​What are company documents? Who is obliged to do it? bookkeeping?

17. ​Why do companies have to have bookkeeping? Explain accompanied by the legal
basis!
a.​ ​What are the elements of bookkeeping?

18.​ ​What is meant by an intermediary trader in relation to the agreement authorization?

19.​ ​Mention and explain the understanding and legal basis of:
a.​ ​Trading Exchange

b.​ ​Cashier

c.​ ​Forwarder

d.​ ​Carrier

20. What is the legal relationship between the Trustee, Third Party, and the Broker and
Commissioner?
21. ​Explain what is meant by Securities! Is there a difference with the Surat Yang
Valuable? Also mention the types!

22.​ ​J​udging from the shape, how are the securities?

23. ​What distinguishes PT from PP, Firm, and CV especially in terms of aspects
external?

24. ​Who is responsible for the responsibility arising from the consequences of PT?
Associate with the principle ​"pierce through the company veil" ​Intermediary traders

25.​ ​Mention and explain understanding and provide the legal basis of
a.​ ​Exchange

b.​ ​Cashier

c.​ ​Broker

d.​ ​Commissioner

e.​ ​Forwarder

26.​ ​Explain the broker and commissioner elements!

27. ​What is the difference between the consumer agreement and the transportation
agreement?

28. ​What are company documents? Basically bookkeeping aims to as proof, who is
obliged to carry out bookkeeping, and what is the trader individual, PP, Firm, CV must
do bookkeeping?

29.​ ​What are securities? Compare with valuable letters?

30. ​What is the difference between money orders / drafts and checks and promissory
notes
Case
Hasan, Husin, Upin, and Ipin are friends from childhood who dreamed of making a
business that basically moves in the field of providing transportation services. By them,
business it was named "PT. TIQI ". However, the four friends did not understand the way
establishing PT, therefore all four come to you to ask for your opinion.
1.​ ​Explain to the four friends how to establish PT TIQI!

2. ​If later Hasan and Husin at the time wanted to make an income to the capital want to
use their property in the form of Kiosks and Cars, what is the matter can it be used as
company capital?

3. ​If before the issuance of the certificate of establishment from the Ministry of Law and
Human Rights for PT TIQI, what PT TIQI can run the business? If later when
delivering goods, PT TIQI's car hit an old grandmother so the grandmother asked
compensation, what is the form of accountability?

4. ​If after two years the business runs and then PT TIQI loses, is Husin (director) can be
held accountable?
One day, PT TIQI got an order to send a thousand chunks of wood from his client PT.
Identity, to a wood processing plant in Jakarta. For this reason, PT TIQI later appointed
PT PELNI as the carrier of the wood.
5. ​What agreement occurs between PT TIQI and PT Jati Jati? And what agreement
happened between PT TIQI and PT PELNI?

6. ​If there is a loss in the transportation (damage to wood), does PT TIQI can be held
accountable?

Dagang Reg

- CV: bagi rugi di CV -> aktif/pasif cuma hubungan eksternal, rugi semua bareng -> can
be governed in BW if there is no bylaws of the CV
- Piercing the corporate veil -> Article 3 of UUPT
- Surat berharga, kenapa it falls under property law and contractual law?
- Difference between makelar and komisioner
- Syarat sah kontrak -> Konsensualisme

- knp surat berharga gak asesoir

- hak relatif surat berharga
- PT cakap dalam hal?
- bedanya sekutu bukan pengurus firma sama sekutu komanditer
- jelaskan syarat sah perjanjian dr lu transaksi gofood