Land encroachment is the act of seizing land that is not owned by an individual or group, either forcibly or without permission from the landowner. This land encroachment issue is one of the most critical and frequently occurring problems in Indonesia.
An individual can assert ownership over land by possessing evidence of ownership in the form of a land certificate, which must be registered with the authorized institution for land registration, namely the National Land Agency (BPN). This is to ensure legal certainty and private property rights as mandated in Article 28D paragraph (1) and Article 28H paragraph (4) of the Constitution of the Republic of Indonesia of 1945 (“UUD 1945”).
Article 28D paragraph (1) UUD 1945
Everyone has the right to recognition, guarantees, protection, and legal certainty that is fair and equal before the law.
Article 28H paragraph (4) UUD 1945
Everyone has the right to own personal property, and such property rights cannot be arbitrarily taken away by anyone.
Therefore, land encroachment constitutes an abuse of authority over the property rights of others, which is an unlawful act. This action typically involves unilateral claims and covert methods such as occupying land, evicting the rightful landowners, and most commonly, erecting fences or barriers to assert coercive ownership, often resulting in losses for the true landowners. Moreover, if the encroached land serves as a pathway frequently utilized by the surrounding community for daily activities, additional losses may be incurred by the community.
To address the issue of land encroachment by others, legal measures can be pursued through litigation or non-litigation avenues. Non-litigation resolution may involve reporting the incident to local authorities with evidence of land ownership in the form of a Land Title Certificate, seeking legal protection against the actions of the land encroacher. Alternatively, initiating negotiations between the relevant parties, namely the rightful landowner and the encroacher, can be pursued to find a mutually beneficial solution.
Furthermore, legitimate landowners have recourse to legal action through both criminal and civil channels. In the case of criminal proceedings, lawful landowners can report the incident to local law enforcement authorities, guided by Government Regulation in Lieu of Law (Perpu) No. 51 of 1960 concerning the Prohibition of Land Use Without Authorization from the Rightful Owner or Controller (“Perpu 51/1960”). Land encroachment constitutes a criminal offense, as stipulated in Article 6 paragraph (1) of Perpu 51/1960, which states:
“Without prejudice to the provisions of Articles 3, 4, and 5, one may be punished with imprisonment for a maximum of 3 (three) months and/or a fine of up to Rp.5,000,- (five thousand rupiahs):
a. Anyone who uses land without permission from the rightful or authorized party, with the provision that regarding plantation lands and forests, those to be settled according to Article 5 paragraph (1) are excluded.
b. Anyone who interferes with the rightful or authorized party in using their rights over a piece of land.
c. Anyone who instructs, persuades, or incites verbally or in writing to commit the acts referred to in Article 2 or letter b of paragraph (1) of this article;
d. Anyone who provides assistance in any form to commit such acts as referred to in Article 2 or letter b of paragraph (1) of this article.”
Furthermore, the act of land encroachment involving the transfer of such land to another party may be subject to Article 385 paragraph (1) of the Indonesian Criminal Code (“KUHP”), which states:
“Whoever, with the intent to benefit themselves or others unlawfully, sells, exchanges, or encumbers with credit a right to land that has not been certified, a building, structure, plantation, or seeding on land that has not been certified, knowing that another person has a right to it.”
Subsequently, for resolution through civil proceedings, a lawsuit can be filed with the local District Court. This action is based on the losses incurred by the lawful landowner due to the act of land encroachment. Thus, land encroachment is deemed an unlawful act (“PMH”), as stipulated in Article 1365 of the Indonesian Civil Code (“KUHPer”), which states:
“Every legal action that causes harm to another person obligates the individual responsible for the wrongdoing to indemnify for such losses.”
Additionally, Munir Fuady in his book titled “Unlawful Acts: A Contemporary Approach,” page 55, enumerates 7 (seven) models of unlawful acts (PMH) related to encroachment on another person’s land:
- Unlawful act due to trespassing on another person’s land.
- Unlawful act resulting in causing someone to trespass on another person’s land.
- Unlawful act causing an object to trespass on another person’s land.
- Unlawful act involving an individual unlawfully residing on another person’s land.
- Unlawful act leading to someone residing without right on another person’s land.
- Unlawful act resulting in an object unlawfully residing on another person’s land.
- Unlawful act due to an individual’s failure to remove an object from another person’s land despite having a legal obligation to do so.
Therefore, it is clear that in resolving through civil proceedings, anyone who engages in land grabbing is obligated to compensate for the losses incurred by the party or individual who holds rights to the land. Regarding compensation, Munir Fuady in his book delineates forms of compensation for unlawful acts (PMH), namely:
- Compensation for damages, which entails reimbursing the victim for the actual and partial losses suffered due to the unlawful act;
- Punitive damages, which involves compensating the victim with an amount exceeding the actual losses suffered, intended as punishment for the perpetrator.
In conclusion, the legal steps that can be taken when experiencing land grabbing may include pursuing avenues of criminal or civil litigation, as well as non-litigious approaches.
If you require legal consultation, you may contact us through:
Email: Secretary@mnllaw.co.id
Phone: 081295397825 / 081398941976