Hak Milik, as defined by Article 20, Paragraph (1) of Law No. 5 of 1960 on Basic Agrarian Regulations (UUPA), is the strongest and fullest hereditary right that can be held by a person over land. The statute describes it as: “Hak milik adalah hak turun-temurun, terkuat dan terpenuh yang dapat dipunyai orang atas tanah, dengan mengingat ketentuan dalam pasal 6.” (Ownership right is a hereditary, strongest, and fullest right that can be held by a person over land, bearing in mind the provisions in Article 6). The descriptor “strongest” (terkuat) signifies that Hak Milik is not limited by a specific duration, unlike Hak Guna Bangunan or Hak Pakai, and provides the highest level of legal certainty. The descriptor “fullest” (terpenuh) implies that the holder has the most extensive authority to utilize the land, including its surface and the space above and below it, subject to the “social function” principle mandated by Article 6 of the UUPA, which states that all land rights have a social function.

Eligible Subjects of Hak Milik

The eligibility to hold Hak Milik is strictly regulated to prevent the concentration of land ownership in the hands of parties deemed incompatible with national interests. Under Article 21, Paragraph (1) of the UUPA, only Indonesian citizens (Warga Negara Indonesia or WNI) are permitted to hold Hak Milik. Legal entities (Badan Hukum) are generally prohibited from holding Hak Milik, as stipulated in Article 21, Paragraph (2), unless specifically designated by the government.

The exceptions for legal entities are strictly limited by Government Regulation No. 38 of 1963, which permits the following entities to hold Hak Milik:

  1. State-owned banks (Bank-bank Negara);
  2. Religious bodies designated by the Minister of Agriculture/Agrarian Affairs after consultation with the Minister of Religion;
  3. Social bodies designated by the Minister of Agriculture/Agrarian Affairs after consultation with the Minister of Social Welfare.

If an Indonesian citizen loses their citizenship or if a foreigner acquires Hak Milik through inheritance or joint marital property, they are legally required to release or transfer the right to an eligible Indonesian citizen within one year. Failure to do so results in the automatic forfeiture of the right to the State, as mandated by Article 21, Paragraph (3) of the UUPA.

Acquisition and Creation of Hak Milik

The creation of Hak Milik occurs through three primary legal mechanisms as outlined in Article 22 of the UUPA:

  1. Under Customary Law (Hukum Adat): Through the opening of land or other processes recognized by customary traditions, regulated further by Government Regulations.
  2. Government Decree: Through a formal grant by the State, specifically the Ministry of Agrarian Affairs and Spatial Planning/National Land Agency (BPN), following an application process.
  3. Statutory Provision: Through the conversion of rights held prior to the enactment of the UUPA, such as Eigendom rights for Indonesians or certain customary rights.

The transfer of Hak Milik is governed by Article 26 of the UUPA. Transfers may occur through:

  1. Sale and purchase (Jual Beli);
  2. Exchange (Tukar Menukar);
  3. Grant/Gift (Hibah);
  4. Bequest by will (Wasiat);
  5. Inheritance (Waris);
  6. Inclusion in company capital (Inbreng).

Every legal act intended to transfer Hak Milik must be proven by a deed drawn up by an authorized Land Deed Official (Pejabat Pembuat Akta Tanah or PPAT), as required by Government Regulation No. 24 of 1997 on Land Registration.

Encumbrance and Collateral

Hak Milik can be used as security for a debt by encumbering it with a Hak Tanggungan (Security Right). This is regulated by Law No. 4 of 1996 on Hak Tanggungan over Land and Objects Related to Land. According to Article 4, Paragraph (1) of Law No. 4/1996, Hak Milik is the primary object that can be burdened with Hak Tanggungan. The encumbrance does not transfer ownership to the creditor but provides the creditor with a preferential right (droit de preference) to satisfy the debt from the proceeds of the land’s sale if the debtor defaults.

Extinguishment of Hak Milik

The grounds for the extinguishment of Hak Milik are explicitly listed in Article 27 of the UUPA and further clarified in Government Regulation No. 18 of 2021. The right is extinguished if:

  1. The land is surrendered voluntarily by the owner to the State;
  2. The land is abandoned (Tanah Terlantar), as regulated by Government Regulation No. 20 of 2021;
  3. The land is revoked for public interest in accordance with Law No. 2 of 2012;
  4. The land is destroyed due to natural disasters (e.g., land sinking or becoming “lost land” or Tanah Musnah);
  5. The owner loses Indonesian citizenship and fails to transfer the land within the one-year grace period;
  6. The land is transferred to a party ineligible to hold Hak Milik (e.g., a foreign national or an unauthorized legal entity) and the transaction is deemed null and void by law.

In the event of abandonment, the land status reverts to State Land (Tanah Negara). According to Article 7 of PP No. 20/2021, land is categorized as abandoned if it is not utilized, not maintained, or not used in accordance with its nature and purpose as granted in the land right certificate.

Relationship with Other Rights

Hak Milik serves as the “parent right” from which other temporary rights may be derived. Under Article 37 and Article 44 of the UUPA, a Hak Milik holder may grant a Hak Guna Bangunan (Right to Build) or a Hak Pakai (Right to Use) over their land to another party through a written agreement. In such cases, the Hak Milik remains with the original owner, while the secondary right holder possesses a limited, time-bound interest in the property.

Sources Cited