22
Aug2020

PRELIMINARY AGREEMENT OF LAND SALES AND PURCHASE (PPJB DEDD BY A NOTARY PUBLIC) BASED ON LAND LAW.

As social beings, society will create interdependence with each other. The form of interdependence among the community is the existence of a legal relationship between the community which is manifested in legal events such as marriage, business cooperation, buying and selling to other business matters.

One of the legal events that occurred in the community was the Preliminary Agreement Land Sale and Purchase (PPJB), especially drafted by Notary Public. PPJB is commonly used by the community to be used as an initial commitment or as a "temporary binder", so that in the future the land sale and purchase transaction will run smoothly.
Regarding the legal position of the PPJB has been widely reviewed in various studies, especially those discussing the existence of the PPJB in the perspective of the validity of the Agreement as stipulated in Article 1320 of the Civil Code. In Article 1320 of the Civil Code, the terms of an agreement can be divided into several things, including: proficiency (age, psychiatric, etc.), the agreement of the parties, there must be a predetermined object, as well as causes that are lawful or not contrary to applicable law;

The phenomenon of PPJB Notary Public which often occurs in society at a glance is the excess of the enactment of the Law on Notary Public, namely Law Number 2 of 2004 concerning Amendments to Law Number 30 of 2004 concerning the Position of Notary Public.

Article 15 of this law clearly shows that the authority of a notary is "almost" unlimited, namely "Notary is authorized to make authentic deeds regarding all actions, agreements, and decisions required by laws and regulations and / or desired by those with an interest in stated in the authentic Deed, guarantees the certainty of the making date of the Deed, keeps the Deed, provides grosse, copies and excerpts of the Deed, all of that as long as the making of the Deed is not assigned or excluded to other officials or other people as stipulated by law ". Why is it said almost unlimited? because the phrase regarding all the actions, agreements and stipulations that create the authority by the Notary in making authentic deeds has a broad scope;
PPJB as it is known, the legal space for the object of sale and purchase of land has been regulated, namely having to use the AJB (Deed of Sale and Purchase) of Land carried out by the PPAT (Land Deed Making Official) the jurisdiction where the land is domiciled as regulated in Government Regulation Number 24 Year 1997 concerning Land Registration and Government Regulation Number 37 of 1998 concerning Officials for Making Land Deeds, which has now been amended in the form of Government Regulation Number 24 of 2016. 
 
The presence of the authority of a Notary Public's as stated in Article 15, especially with the "phrase". Notary has the authority to make authentic deeds regarding all actions, agreements. It’s the same as opening the legal uncertainty and loopholes of legal violations. There have been many examples of land cases originated from the existence of this Notary PPJB, with a variety of features, ranging from Notary persons who commit acts outside their legal standing, to Notary persons who dare to make PPJB by including selling power (right to selling) in it. This is an essential violation of the authority of a notary whose freedom "should" be limited in formulating contracts, especially those with land nuances;
 
Government Regulation Number 24 of 1997 and Government Regulation Number 37 of 1998 in conjunction with Government Regulation Number 24 of 2016 have limited areas for sale and purchase with land objects which are already the domain of PPAT. It should not be that making an authentic deed with the nuance of a land object, "even approaching it" in the form of a land sale and purchase agreement for the sake of guaranteeing legal certainty, the notary's act of making the PPJB deed should also be prohibited. Although the PPJB deed is regulated in the Civil Code as a Preliminary Agreement and does not violate the legal terms of the agreement stipulated in Article 1320 of the Civil Code, don't forget that the politics of Land law born in Government Regulation Number 24 of 1997 and Government Regulation Number 37 of 1998 Jo Government Regulation Number 24 of 2016 confirms National development requires legal certainty for land registration. So that with this mandate, the work of a Notary Public in the field of sale and purchase, especially land objects, should be prohibited because it makes a summary of legal certainty for land transfer in Indonesia, it is evident from the fact that there are still many people who mistakenly view the legal position of PPJB which according to them is proof of land sale, including the number of land disputes that stem from the existence of legally flawed PPJB.
Then with the regulations in Government Regulation Number 24 of 1997 and Government Regulation Number 37 of 1998 Jo Government Regulation Number 24 of 2016 can simply abolish the authority of the Notary Public in making the PPJB authentic deed? Of course not, because based on the order of the laws and regulations in Indonesia, Government Regulation Number 24 of 1997 and Government Regulation Number 37 of 1998 Jo Government Regulation Number 24 of 2016 have a lower position than the Law on Notary Public Number 30 of 2004 Jo Law Number 2 of 2014. So that since the beginning, the existence of this Law on Notary Public, particularly in Article 15 has reduced the guarantee of legal certainty in the context of land law in Indonesia.
Legal Solutions Are:
Immediately ratify the Draft PPAT Professional Law so that the guarantee of legal certainty regarding land transfer and registration meets its legal politics, namely the guarantee of legal certainty to support national development;
Amendments the Law on the Position of Notary Public which limits the authority in making authentic deeds, including those dealing with land matters.
Author : Lucky Omega Hasan, SH.,MH.,CLA/Founding Attorney

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