ARTICLE REVIEW:

LEGAL PROTECTION OF OWNERSHIP OF APARTMENT UNITS OR

FLATS STANDING ON LAND UNDER MANAGEMENT RIGHTS

Lecturer:

Yance Arizona, S.H., M.H., M.A.

Reviewer:

Reygita Yusiani

Law 2018

017201800011

PRESIDENT UNIVERSITY

LAW

2020
A. BRIEF INFORMATION

Title : Perlindungan Hukum Pembeli Apartemen atau Rumah Susun Di Atas Tanah

Hak Pengelolaan

Author : Yusuf Saepul Zamil, a law lecturer from Padjadjaran University

Publisher : Brawijaya University through Arena Hukum, an open access peer review journal

that mediates the socialization of academics, researchers, and practitioners in the

field of law

Publish Date : December 2017

Volume : 10

Number :3

B. INTRODUCTION

The construction of apartments or flats whose land comes from management rights on
behalf of the government has the potential to cause disputes between the government, developers
and apartment owners. The problem arises when the apartment owner and the apartment
residents will extend the Building Use Rights (HGB) on the land, yet the government rejected the
request because the HGB for the land stood on land with the status of management rights and the
government would use the land for public purposes. In reviewing this problem, the author uses
descriptive analytical research, with a normative juridical approach, namely an approach method
that focuses on literature research which is secondary legal material.

This article provides knowledge about the concepts, theories, and rules of agrarian law in
the scope of Management Rights, Building Use Rights, and Ownership Rights attached to an
apartment construction. This article also accommodates legal knowledge to the public when
buying an apartment so that they will not be harmed and their rights are protected. In addition,
this article discusses legal protection for holders of property rights over apartment units whose
land use rights with them stand on Management Rights on behalf of the government (state land)
based on the national legal system in Indonesia and legal remedies that can be taken by
HMASRS holders (Ownership Rights of Apartment Units) which when it was about to extend
the Right to Build the land with it was rejected by the government as the holder of the
Management Right.

Therefore, I determine that this article can help me understand about the disputes that
often occur in buying and selling apartments or flats in urban life. I want to learn more deeply
and understand about the role of the main agrarian law and some relevant regulations for the
Indonesian people through this article. With the existence of the Agrarian Law course in this
semester, this article was able to provide an understanding for me in describing the implications
of Agrarian Law as well as establishing relevant legal principles for law students to study.

C. SUMMARY

Fulfilling housing needs is still one of the main problems for Indonesia. This is due to the
increasing cost of property due to narrow land in urban areas, which is the main place for people
to earn a living. Along with the increasing rate of population growth in Indonesia, the need for
land for housing is currently increasing, unfortunately the availability of the existing land is
increasingly limited. Therefore, to deal with it, the government has rolled out a policy, namely
the fulfillment of the community's needs for housing no longer has to be horizontal which
requires a large area of land like ordinary housing in general, but is more vertical which does not
really need a large area of land by building upwards through the construction of flats or
apartments.

The limited availability of land in big cities, such as Jakarta, has made property
developers choose to build vertical type housing such as apartments as a solution. Residential
apartments are also in demand because most of the apartments are located in the city center
which is very strategically close to office areas. Along with the development of apartment in big
cities, it should also be balanced with public knowledge about the legal aspects of an apartment,
so that the public will understand and will not be disadvantaged when buying an apartment.
 Various regulations in the field of flats that have been promulgated by the government,
such as Law Number 20 of 2011 concerning Flats, are expected to accelerate the development of
simple rental flats (rusunawa) and simple flat owned (rusunami). The government has provided
the widest possible convenience for developers in building apartment projects so that they can
help the community to more easily obtain apartment units.

The convenience and flexibility that the government provides to developers, apart from
being related to taxes, also provides convenience and flexibility in the use of land controlled by
the government for the benefit of building flats. In practice the land to be used for the
construction of flats can come from land purchased from the community or what is known as
pure building use rights, it can also come from land controlled by the government or Building
Use Rights on land under management rights.

Flats can be built on land with management rights as regulated in Article 17 of Law
Number 20 Year 2011 Concerning Flats, which states that flats can be built on the following
land: a. right of ownership; b. the right to build or use rights over state land; and c. rights to build
or use rights over management rights.

The construction of apartments or flats whose land comes from management rights on
behalf of the government has the potential to cause disputes between the government, developers
and apartment owners. This dispute can occur when the apartment owner and the residents of the
apartment will extend the Building Use Rights (HGB) on the land. The government will reject
the application because the HGB over the land stands on land with the status of management
rights and the government will use the land for public purposes.

Legal Efforts of Owners of Flat Units against the Government's Refusal to Hold
Management Rights in Applications for Extension of Building Use Rights on Land.

Settling and managing life in an apartment or flats in Indonesia is not an easy problem
because there are many sets of procedures that the owners or residents of the apartment must
know and follow. This is because there are many problems that must be arranged together
considering that living in a flat is different from living in an ordinary residential house. This
difference is reflected in the ownership rights and obligations that accompany the residents of the
apartment. In this case, the residents of the apartment often become the aggrieved party so that it
needs to be emphasized again which are the obligations of the developer and the rights of the
residents of the apartment.

Many cases have caused legal friction between the government, developers and residents
of flats which provide strong indications and a realistic picture that the problems faced by
apartment housing still require joint solutions. This is due to the overlapping of various existing
regulations, but also due to limited access to information received by buyers of apartment
dwellers, both before buying a flat and after becoming a resident of an apartment so that it is still
a separate obstacle to this day.

Buyers who live in flats need access to correct information regarding buying and selling
procedures, ownership of the apartment and it becomes a matter of land status which is used as
the right to build a flat. Transparency is a major problem that must be addressed by apartment
developers, government, and related parties so as not to harm the buyers of apartment dwellers
because without transparency it will only raise suspicion from each other so that it will become a
problem that will arise in the future.

In the practice that has occurred in the sale of flats or apartments, many developers who
are not transparent and dishonest in telling prospective buyers of flats or apartments that the land
to be used to build flats or apartments is owned by the government. Many developers have a
more profit-oriented attitude and so do not heed the ethics of buying and selling, which in the
end is detrimental to the buyers of apartment residents. The juridical implication is that a flats
built on land under government management rights will cause problems when the buyer extends
the joint land use rights and the extension of the building use rights over collective land is not
approved by government agencies because the land will be taken again by government agencies.

Legal remedies that can be taken by residents of apartment by filing a lawsuit for
compensation to cover the recommended cost of extension of Building Use Rights, if it can be
proven that at the time of selling the apartment unit, the developer hides the fact that the
apartment stands on land. Another legal effort that can be taken by the residents of the apartment
is to hold negotiations with the government who holds the management rights so that the
government can grant permits to extend the Building Use Rights for Joint Land by providing a
levy in accordance with applicable regulations.
 In addition, the term of ownership of property rights to apartment units must be equated
with the provisions of property rights such as ordinary residential houses as regulated in the
provisions of the UUPA, namely property rights have no period of time and last for eternity as
long as there is no transfer of rights by the owner. Therefore, the legal protection that must be
given by the government to holders of ownership rights to apartment units whose land use rights
with them stands on the Management Rights on behalf of government agencies, namely by
approving the extension of the Building Use Rights over the shared land on which stands the
apartment building which is already inhabited by the residents of the apartment.

In Law Number 20 Year 2011 Concerning Flats, it is necessary to regulate and emphasize
that a flat which is built on management rights cannot be issued ownership rights to apartment
units, but only to apartment residents can be issued a lease or use right. The government shall
impose sanctions on developers who in bad faith withhold information about the status of land to
buyers who live in flats, including information about the status of apartment land. The
government, developers and apartment residents should resolve the issue of land status for
apartments that stand on land under management rights before the term of the Building Use
Rights on the land with them ends to minimize the legal impact that will occur.

D. EVALUATION

Strength:

1. After I read the abstract in this academic journal, I immediately became interested in
further reading, because the author was able to clearly describe the subject matter of the
research, methodology and the results obtained.
2. This article examines the disputes that often occur in the sale and purchase of apartments
or flats, and the author can provide clear explanations and establish proper legal
principles that ensure even people with limited legal knowledge will be able to
understand the arguments he is trying to promote.
Weakness:

1. In this article there are several typos because the repetition of the same word is used by
the author, so that there are some paragraphs that have less effective sentences.
2. Because the author uses terms that are rarely heard, a blur of meaning in some parts is
inevitable, which makes me a little confused.

E. CONCLUSION

After reading this article I have concluded that transparency and honest communication
must be applied in making sale and purchase agreements so that unwanted things do not occur.
The number of disputes over Management Rights assets that are used by third parties today is
also due to the absence of regulations that clearly regulate the status of Property Rights for Flats
if the Building Use Rights expire. For this reason, it is necessary to immediately formulate laws
and regulations regarding Management Rights which re-occupy the function of Management
Rights according to the spirit contained in the Basic Agrarian Law.

In addition, the government must have strong and accountable reasons for refusing to
extend the Building Use Rights above management rights, when an apartment building permit is
granted by a government agency, of course, it must be in accordance with the regency / city
spatial plan, namely areas for housing and settlements. Therefore, as long as there are no changes
in spatial planning, there is no reason for government agencies to reject the extension of Building
Use Rights above management rights. In deciding a state land to be used to meet the
community's need for housing, the government must designate a land that is indeed designated
for residential and residential areas and the land will never be used for other uses such as office
buildings or other uses.