Introduction

Indonesian land law recognizes priority rights in the granting or re-granting of land rights. In the development of land law, priority rights constitute a privilege that grants priority to obtain or re-obtain land rights to (a) parties who physically possess and cultivate the land or (b) former land rights holders. Priority rights serve as an important agrarian legal instrument in the reorganization of land possession and land ownership. 

Regulations concerning priority rights are scattered across various laws and regulations, including:

1. Law Number 1 of 1958 on the Abolition of Partikelir Lands (“Law 1/1958”);
2. Government Regulation Number 24 of 1997 on Land Registration (“GR 24/1997”);
3. Government Regulation Number 18 of 2021 on Management Rights, Land Rights, Apartment Units, and Land Registration (“GR 18/2021”);
4. Presidential Decree of the Republic of Indonesia Number 32 of 1979 on Basic Policy in the Granting of New Rights over Land Originating from the Conversion of Western Rights (“Presidential Decree 32/1979”);
5. Minister of Home Affairs Regulation Number 3 of 1979 on Provisions Concerning Applications for and Granting of New Rights over Land Originating from the Conversion of Western Rights (“MoHA Regulation 3/1979”); and
6. Decree of the Minister of State for Agrarian Affairs/Head of the National Land Agency Number 6 of 1998 on the Granting of Ownership Rights over Residential Land (“Decree of the Minister of Agrarian Affairs 6/1998”). 

Discussion

This article discusses various forms of priority rights in Indonesian land law, encompassing both priority rights that previously existed but have ceased to operate, as well as priority rights that remain valid to date. 

A. Priority Rights That No Longer Valid

Priority Rights under Law 1/1958 – Priority Rights over Ex- Partikelir Lands

Law 1/1958 regulates priority rights in the reorganization of the possession and ownership of abolished ex-partikelir lands. Partikelir lands abolished pursuant to Article 3 of Law 1/1958 were converted into state land.

Article 5 of Law 1/1958 stipulates that ex- partikelir lands categorized as commercial/business land are granted with ownership rights (hak milik) to residents holding business rights over such land. In other words, Law 1/1958 provides priority to parties who physically possess and cultivate ex- partikelir lands to hold ownership rights (hak milik) over the land.

It should be understood that physical possession of land refers to residing on and/or conducting business activities or cultivating the land in question (Ismail, 2024:112).

The priority right to obtain ownership rights (hak milik) over ex- partikelir lands is no longer valid, given that the existence of partikelir lands has now been completely abolished. 

Priority Rights under Presidential Decree 32/1979 and MoHA Regulation 3/1979 – Priority Rights over State Land Formerly Land Converted from Western Rights (Tanah Negara Eks Tanah Hak Hasil Konversi Hak Barat)

Furthermore, Presidential Decree 32/1979 and MoHA Regulation 3/1979 govern priority rights in the context of the expiration of cultivation rights (“HGU”), building use rights (“HGB”), and rights of use (hak pakai) originating from the conversion of Western rights as of September 24, 1980. Every HGU, HGB, and right of use (hak pakai) originating from the conversion of Western rights that has expired was converted into state land.

In the context of reorganizing the possession and ownership of state land originating from land converted from Western rights, Presidential Decree 32/1979 and MoHA Regulation 3/1979 grant priority to obtain new land rights over such state land formerly land converted from Western rights (tanah negara eks tanah hak hasil konversi hak Barat), through an application mechanism for new rights to (a) former rights holders who physically possess the land and (b) parties who physically possess the land.

Priority rights to obtain HGB, HGU, and rights of use (hak pakai) over state land formerly land converted from Western rights (tanah negara eks tanah hak hasil konversi hak Barat) are no longer applicable, given that Article 3 paragraph (2) of MoHA Regulation 3/1979 set the validity period of such priority rights only until September 24, 1980 (as of that date, land rights resulting from the conversion of Western rights no longer existed). 

B. Priority Rights That Remain Valid

Priority Rights under Decree of the Minister of Agrarian Affairs 6/1998 – Priority Rights to Obtain Ownership Rights (Hak Milik) over Residential Land

Furthermore, Decree of the Minister of Agrarian Affairs 6/1998 grants priority rights to individual Indonesian citizens who are (a) holders of HGB or rights of use (hak pakai) or (b) former holders of HGB or rights of use (hak pakai) over land with an area of ≤ 600 m² utilized for residential houses, to obtain ownership rights (hak milik) over such land.

The priority right as regulated under Decree of the Minister of Agrarian Affairs 6/1998 is a specific priority right to obtain ownership rights (hak milik) over residential land previously held through HGB or rights of use (hak pakai).

Priority Rights under GR 24/1997 – Priority Rights in Initial Land Registration

GR 24/1997 in principle regulates the fundamentals of land registration in Indonesia. Article 24 paragraph (2) of GR 24/1997 regulates priority rights to obtain “recognition of rights” in initial land registration for old rights land with incomplete proof of ownership.

Article 24 paragraph (1) of GR 24/1997 provides that for the purpose of registering rights, an applicant for the registration of land rights originating from the conversion of old rights must prove their rights over the land parcel with (a) written evidence of ownership of the land and (b) witness statements.

In the event that proof of ownership as referred to above does not exist or is no longer available, Article 24 paragraph (2) of GR 24/1997 provides that proof of rights in initial land registration is based on the factual physical possession of the land parcel for 20 consecutive years or more by the applicant and their predecessors, provided that:

1. The physical possession is conducted in good faith;
2. Such physical possession is not contested by the customary law community, village, or other parties; and
3. It is supported by the testimony of trustworthy persons.

If all the above conditions are fulfilled, the Land Office shall issue a decision on “recognition of rights” to serve as the basis for obtaining a land rights certificate.

Based on the foregoing, it can be concluded that Article 24 paragraph (2) of GR 24/1997 grants priority in registering rights to parties who have physically possessed the land for 20 consecutive years or more.

Priority Rights under GR 18/2021 –Priority Rights to Re-Obtain Rights for Former Holders of HGB, HGU, and Rights of Use (Hak Pakai)

GR 18/2021 regulates priority rights for former land rights holders to apply for the re-granting of rights over land whose period of granting, extension, or renewal has expired.

The relevant provisions are set out in Article 22 (for HGU), Article 37 (for HGB), and Article 52 (for rights of use).

GR 18/2021 stipulates that land held under HGU, HGB, and rights of use (hak pakai) over state land whose period of granting, extension, or renewal has expired reverts to state land. For such land, priority in the reorganization of its use, utilization, and ownership is granted to former rights holders, provided that the land is still properly cultivated and utilized in accordance with the purpose for which the rights were granted.

GR 18/2021 grants priority rights to former rights holders who physically possess and cultivate the land.

Conclusion

Based on the foregoing, it can be concluded that priority rights serve as a legal instrument in land law to achieve a fair reorganization of land possession and land ownership, taking into account (a) physical possession and cultivation of land and (b) status as a former land rights holder.

Priority rights cannot be understood as rights that automatically create or restore rights over land. Their implementation remains dependent on the type of land, type of rights, statutory requirements, and applicable procedures for the granting or registration of land rights.

In Indonesian land law, priority rights do not constitute a single, uniform regime of rights, but rather a legal concept scattered across various land regulatory provisions with distinct characteristics and scopes. Priority rights essentially grant a preferred position to certain parties to obtain or re-obtain land rights, primarily based on (a) physical possession and cultivation of land and (b) status as a former land rights holder.

References:

1. Law 1/1958
2. GR 24/1997
3. GR 18/2021
4. Presidential Decree 32/1979
5. MoHA Regulation 3/1979
6. Decree of the Minister of Agrarian Affairs 6/1998
7. Ismail, Nurhasan. 2024. Hukum Pengurusan dan Pendaftaran Hak atas Tanah, Teori dan Praktik. Malang: Setara Press.