Book II of the Supreme Court, 2026 edition, confirms that leasehold rights may serve as the basis for a third party’s objection to both security attachment and enforcement attachment.
Can a tenant of land or a house file an objection to the attachment and execution of the property they are renting, even though the tenant is not a party to the case? This issue arises when the owner of the leased property loses a dispute or fails to fulfill their debt obligations, leading the court to order the attachment and execution of the property. In such circumstances, the tenant faces the legal consequences of a case in which they were never a party.
Book II of the Guidelines for the Performance of Judicial Duties and Administration, 2026 edition, recognizes the right of tenancy as one of the grounds for a third party to file an objection (derden verzet) against the attachment and execution of the leased property.
Regulations on Book II of the Supreme Court Guidelines on Third-Party Objections
The Chief Justice of the Supreme Court issued Decision No. 159/KMA/SK.HK2/VIII/2026 on the Enforcement of Book II of the Guidelines on Technical Administration and Judicial Procedures (“Book II of the Guidelines”). This Decision supersedes Decision of the Chief Justice of the Supreme Court No. KMA/032/SK/IV/2006, which previously served as the basis for the implementation of Book II of the Guidelines on the Performance of Judicial Duties and Administration.
Book II of the Guidelines provides that a third party may file an objection to both a security attachment and an execution attachment based on rights to the attached property. The grounds for such an objection are not limited to ownership rights but also include other rights, such as:
- Right to Build (HGB);
- Right to Use for Business (HGU);
- Mortgage Right (HT);
- Right of Use;
- Right of Lease
The third party files an objection with the Chief Judge of the District Court conducting the execution; in this objection, the third party must prove that it possesses a valid legal basis for its rights to the property subject to attachment or execution. The Supreme Court recognizes an objection from a third party holding preferential rights to the property or a leasehold right as one of the grounds for suspending the execution.
Book II of the Guidelines provides protection to tenants of land or houses who had already leased the property before the court imposed an attachment, whether as a security attachment or an execution attachment. Tenants in such circumstances are not subject to eviction solely because the leased property has been attached and/or is subject to auction. The successful bidder at auction must respect the existing lease agreement and wait until the lease term expires before taking possession of the property.
Legal Basis for Third-Party Objections
In principle, the filing of a third-party objection (derden verzet) does not automatically suspend the execution proceedings. Therefore, the tenant must explicitly file a motion for a stay of execution with the Chief Judge of the District Court. Pursuant to Supreme Court Circular Letter No. 3 of 2018 Regarding the Implementation of the Formulation of the Results of the 2018 Plenary Session of the Supreme Court Chambers as Guidelines for the Performance of Duties by the Courts (“SEMA No. 3/2018”) in conjunction with Supreme Court Circular Letter No. 07 of 2012 on the Legal Formulations Resulting from the 2018 Plenary Session of the Supreme Court Chambers as Guidelines for the Performance of Duties by Courts (“SEMA No. 07/2012”), a third-party objection (derden verzet) is directed at the validity of a seizure order, seizure report, an execution order, or an auction order pursuant to Article 195(6) in conjunction with Article 208 of the HIR may only be filed on the grounds of “ownership,” which includes the right of ownership (HM), the right to use a building (HGB), the right to use for business purposes (HGU), the right of use (HP), and the right of land pledge.
Thus, there has been a development in the Supreme Court’s guidelines regarding the recognition of lease rights in the context of objections to attachment and execution.
The Legal Perspective on Leasehold Rights
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Kitab Undang-Undang Hukum Perdata (Burgerlijk Wetboek voor Indonesie) |
Law No. 5 of 1960 on the Basic Provisions of Agrarian Law (“UUPA”) |
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Article 1548: A lease is an agreement whereby one party undertakes to grant the other party the right to use a certain item for a specified period of time in exchange for the payment of an agreed-upon rent.
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Article 16(1)(f) in conjunction with Article 44 of the Land Law (UUPA) recognizes the right of lease as one of the rights to land. Article 44(1) provides that a person or legal entity has the right to use land owned by another person for construction purposes by paying a certain amount of rent to the landowner. The Explanatory Notes to Articles 44 and 45 clarify that the right of lease is a right of use with specific characteristics. The UUPA distinguishes between two types of lease rights: the right to lease land for the purpose of erecting a building (see Article 10(1)) and the right to lease agricultural land, which is of a temporary nature (see Article 16 in conjunction with Article 53). |
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Leased property includes movable and immovable property. |
The subject of the leasehold right for a building is land owned by another party. |
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A legal relationship arises from an agreement between the lessor and the lessee. |
A lease grants a person or legal entity the right to use land owned by another party. |
| Article 1576 provides that the sale of a leased property does not, in principle, terminate a previously entered into lease agreement, unless the parties agree otherwise. |
Article 45 specifies the legal entities that may hold lease rights, including Indonesian citizens, foreign nationals residing in Indonesia, Indonesian legal entities, and foreign legal entities with a representative office in Indonesia. |
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Thus, a change in ownership of the leased property does not, in principle, terminate the existing lease agreement. This principle serves as the basis for protecting tenants when the leased property is transferred to another party. |
Article 44(2) of the UUPA provides that rent payments may be made under the following conditions: a. Paid in a single installment or at specific intervals as agreed upon by the parties. b. Paid before or after the land is used by the tenant. In principle, the UUPA grants the parties the freedom to determine the mechanism for rent payments based on mutual agreement, provided that the agreement does not contain elements of extortion. |
Form of a Lease Agreement
The Civil Code recognizes lease agreements in both written and oral forms, provided they are based on the mutual agreement of the parties. This means that the agreement comes into existence and becomes binding once the parties reach an agreement regarding the leased property and the rent, provided it meets the requirements for a valid agreement as set forth in Article 1320 of the Civil Code.
As provided in Article 1570 of the Civil Code, a written lease agreement terminates by operation of law upon the expiration of the agreed-upon term, without requiring notice of termination. Meanwhile, Article 1571 of the Civil Code provides that an oral lease agreement requires notice from one of the parties to terminate the lease relationship, subject to the notice period in accordance with local custom.
Specifically regarding the occupancy of a house under a lease agreement, Article 28, paragraph (4) of Government Regulation No. 14 of 2016 on the Management of Housing and Residential Areas, as amended by Government Regulation No. 12 of 2021 on Amendments to Government Regulation No. 14 of 2016 on the Management of Housing and Residential Areas (“GR No. 14 of 2016”) requires landlords and tenants to enter into a written agreement. Furthermore, Article 28(5) stipulates that the written agreement must at a minimum include the rights and obligations of the parties, the lease term, the rent, and provisions regarding force majeure. This provision requires a written form but does not require the parties to execute the agreement as a notarial deed.
Article 9 of Government Regulation No. 24 of 1997 on Land Registration (“GR No. 24/1997”) does not list lease rights as an object of land registration. Consequently, tenants do not obtain a lease rights certificate through land registration at the Land Office.
When filing a third-party objection (derden verzet) against an attachment or execution, a written agreement helps the tenant prove the existence of the lease relationship, the identity of the leased property, the term, the rent amount, and the start date of the lease. Such evidence is relevant to demonstrate that the tenant already had a legal relationship with the leased property prior to the attachment or execution.
Tenant’s Burden of Proof
The form of a document affects its probative value. Pursuant to Article 1868 in conjunction with Article 1870 of the Civil Code, an authentic instrument drawn up by or in the presence of an authorized public official has full probative value for the parties, heirs, and assignees. Meanwhile, Article 1874 in conjunction with Article 1875 of the Civil Code recognizes a private document signed by the parties and acknowledged as authentic as evidence possessing full probative force against the signatories, heirs, and assignees.
However, Article 1880 of the Civil Code provides that the date of a private document is, in principle, not binding on third parties, unless that date is established with certainty through means prescribed by law, such as the affixing of a statement or registration by an authorized official, the death of one of the signatories, or a written acknowledgment by a third party.
Book II of the Guidelines only protects tenants who rented prior to the foreclosure, so the tenant must prove that the lease existed on that date. A creditor or auction purchaser may challenge an unregistered agreement without a recorded date on the grounds that the date was backdated.
Thus, a private lease agreement may still serve as evidence in a third-party objection (derden verzet). To prove that the lease relationship existed prior to the seizure or execution, the tenant must support this with evidence of rent payments, proof of possession or occupancy of the property, and other documents demonstrating the performance of the agreement.
Protection for tenants under Book II of the Guidelines applies as long as the lease term is still in effect. Upon the expiry of the lease term, the auction purchaser shall be entitled to obtain possession of the leased property. To prove that the lease relationship existed prior to the seizure or execution, the tenant must support this with evidence of rent payments, proof of possession or occupancy of the property, and other documents demonstrating the performance of the agreement.
Protection for tenants under Book II of the Guidelines applies as long as the lease term is still in effect. Once the lease term ends, the auction purchaser is entitled to take possession of the leased property.
Conclusion
A leasehold right may serve as the basis for a third party to file an objection to both a security attachment and an execution attachment. Book II of the Supreme Court Guidelines (2026 Edition) and the Civil Code recognize the validity of leasehold rights even if the leased property changes hands through a sale. The law does not require a notarial deed as a mandatory form for a lease agreement. Therefore, a tenant with a handwritten agreement may still file an objection, provided they can prove that the lease relationship existed prior to the seizure.
If you are facing a seizure or the enforcement of a court judgment regarding a property you are leasing, MNL Law Firm is ready to provide legal assistance in resolving the matter in accordance with applicable procedural laws.
References
- Herziene Inlandsch Reglement (HIR)
- Rechtsreglement voor de Buitengewesten (RBg)
- Civil Code
- Law No. 5 of 1960 on Basic Provisions of Agrarian Law
- Government Regulation No. 24 of 1997 on Land Registration
- Government Regulation No. 14 of 2016 on the Management of Housing and Residential Areas, as amended by Government Regulation No. 12 of 2021 on Amendments to Government Regulation No. 14 of 2016 on the Management of Housing and Residential Areas
- Supreme Court Circular Letter No. 3 of 2018 on the Implementation of the Formulation of the Results of the 2018 Plenary Session of the Supreme Court Chambers as Guidelines for the Performance of Duties by the Courts, in conjunction with Supreme Court Circular Letter No. 07 of 2012 on the Legal Conclusions of the 2018 Plenary Session of the Supreme Court Chambers as Guidelines for the Performance of Duties by the Courts
- Decision of the Chief Justice of the Supreme Court No. 159/KMA/SK.HK2/VIII/2026 on the Implementation of Book II of the Guidelines for Technical Administration and Judicial Procedures.
Author: RD Agung Fajar Apriliyano, S.H., M.H.
Editor: Yohana Maranatha, S.H., M.Kn.