Does Abandoned Land Belong to the State?

PERTANYAAN

If I have a right/title to own land, or a business license to use the land, but the land is not utilized, is it true that the land will be taken by the state?

ULASAN LENGKAP

This article is an English translation of Benarkah Tanah yang Terlantar Jadi Milik Negara? which was written by Saufa Ata Taqiyya and was published on Friday, 19 March 2021.

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The control of abandoned zones and lands has actually been regulated under Government Regulation Number 20 of 2021 on the Control of Abandoned Zones and Lands ("Government Regulation 20/2021").

Abandoned zones are non-forest zones that have not yet been attached to the right to a land that already has licenses/concessions/business licenses, which are intentionally uncultivated, unused, and/or unutilized.[1]

Meanwhile, abandoned lands are lands under rights, right-of-management lands, and lands acquired based on land tenure, which are intentionally left uncultivated, unused, unutilized, and/or unpreserved.[2]

Every holder of licenses/concessions/business licenses must operate, use, and/or utilize licenses/concessions/business licenses and/or controlled zones.[3] Similar obligations also apply to rightsholders, holders of management rights, and land tenure holders.[4]

The Object of Control of Abandoned Lands and Zones

If non-forest zones which have not yet been attached to the right to a land that already has licenses/concessions/business licenses are intentionally left uncultivated, unused, and/or unutilized, then the said zones shall become the object of control of abandoned zones.[5]

The objects of control of abandoned zones are:[6]

1. mining zone;
2. plantation zone;
3. industrial zone;
4. tourism zone;
5. large-scale/integrated housing/settlement zone; or
6. other zones in which the exploitation and/or utilization are based on licenses/concessions/business licenses relating to the utilization of land and space.

As for lands that have been registered or not registered which are intentionally not cultivated, not used, not utilized, and/or not preserved, then they become the objects of control of abandoned land.[7]

The objects of control of the abandoned lands include the following lands with the rights to:[8]

1. property right, if it is intentionally not used, not utilized, and/or not maintained so that:[9]

1. controlled by the community as well as becoming a village area;
2. is continuously controlled by other parties for 20 years without any legal relationship with the rightsholder; or
3. the social function of the right of the land is not fulfilled, either the rightsholder still exists or he no longer exists;

2. right to build, right to use, and right to manage, if these are intentionally not cultivated, not used, not utilized, and/or not preserved commencing from 2 years since the issuance of the right;[10]
3. right to cultivate, if it is intentionally not cultivated, not used, and/or not utilized, commencing from 2 years since the issuance of the right;[11] and
4. land acquired based on land tenure, if it is intentionally not cultivated, not used, not utilized, and/or not preserved commencing from 2 years since the issuance of the basis of control over the land.[12]

However, there are exceptions to the controls of abandoned land over land with management rights which include the land of customary law community (indigenous people) and land bank assets.[13]

Process of Determination Abandoned Zones and Lands

Prior to determining the 'abandoned' status, an inventory of the zone and land which are indicated as abandoned must first be undertaken.

Inventories of indicated abandoned zones shall be carried out by the Head of the Agency, namely the head of a state institution, ministry, non-ministerial government agency, provincial government, or regency/city government that issued the license/concession/business licenses in accordance with their authority,[14] from the report or information of the holder of licenses/concessions/business licenses, the agency itself, and/or the community.[15]

Meanwhile, inventories of abandoned lands shall be carried out by the Land Office, according to reports or information of:[16]

1. holder of the rights, management rights, or the basis of land tenure;
2. the results of monitoring and evaluation of land rights and the basis of land tenure conducted by the Land Office, Regional Office, and the Ministry of Agrarian Affairs and Spatial Planning/Head of National Land Agency
3. ministries/agencies;
4. regional government; and/or
5. community.

Furthermore, the control of abandoned zones and lands is carried out in the following stages:[17]

1. evaluation of abandoned zones and lands;
2. warnings of abandoned zones and lands; and
3. determination of abandoned zones and lands.

In the event that the evaluation results are found to be intentionally not cultivating, not using, and/or not utilizing any licenses/concessions/business licenses and/or their zones, the head of the agency shall deliver a notification to the relevant holder within a maximum period of 180 days from the date of issuance of the notification.[18]

If the notification is still not attempted by the end of the abovementioned period, the person concerned will be given a written reprimand/warning up to 3 times.[19] If the third written warning is also not implemented, then the head of the agency will designate it as an abandoned zone.[20]

Formerly, the process of notification and granting of written warnings up to 3 times also applies to land which is indicated as abandoned, if from the evaluation results it is known that the holders of the rights, management rights, or basis of land tenure intentionally do not cultivate, do not use, do not utilize and/or do not preserve the land.[21]

Holders of rights, management rights, or basis of the land tenure who do not carry out the third written warning, then the head of the Regional Office within a maximum period of 30 working days proposes a designation of abandoned land to the Minister of Agrarian Affairs and Spatial Planning/Head of National Land Agency.[22]

Legal Consequences of Abandoned Zones and Lands

As for after being determined as an abandoned zone, the stipulation also contains:[23]

1. revocation of licenses/concessions/business licenses; and/or
2. affirmation as a zone that is directly controlled by the state.

Meanwhile, for abandoned lands, the stipulation also contains:[24]

1. if the abandoned land is in the form of private land or right of management land and constitutes the entire expanse:

1. abolition of rights of the land or management rights;
2. termination of legal relations; and
3. affirmation as formerly abandoned state land that is directly controlled by the state.

2. if the abandoned land is in the form of private land or right of management land and constitutes some part of the expanse:

1. abolition of rights of the land, or management rights in abandoned parts;
2. severance of the legal relationship between the holder of the rights or management rights with the abandoned land;
3. affirmation as formerly abandoned state land that is directly controlled by the state of the abandoned land; and
4. an order to revise rights of the land or management rights.

3. if the abandoned land is land with the basis of land tenure:

1. termination of legal relationship with the holder of the basic of land tenure; and
2. affirmation as formerly abandoned state land that is directly controlled by the state.

In conclusion, it is correct that if you have rights or business licenses over lands/zones but they are not being used/cultivated/utilized/preserved properly, then said lands/zones may be designated as abandoned lands/zones which will be directly controlled by the state. In addition, your business license will be revoked and the legal relationship between the lands/zone and you will be terminated.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Government Regulation Number 20 of 2021 on the Control of Abandoned Zones and Lands.

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[1] Article 1 Section (1) Government Regulation Number 20 of 2021 on the Control of Abandoned Zones and Lands ("Government Regulation 20/2021").

[2] Article 1 Section (2) Government Regulation 20/2021.

[3] Article 2 Section (1) Government Regulation 20/2021.

[4] Article 4 Section (1) Government Regulation 20/2021.

[5] Article 3 Section (1) Government Regulation 20/2021.

[6] Article 6 Government Regulation 20/2021.

[7] Article 5 Section (1) Government Regulation 20/2021.

[8] Article 7 Section (1) Government Regulation 20/2021.

[9] Article 7 Section (2) Government Regulation 20/2021.

[10] Article 7 Section (3) Government Regulation 20/2021.

[11] Article 7 Section (4) Government Regulation 20/2021.

[12] Article 7 Section (5) Government Regulation 20/2021.

[13] Article 8 Government Regulation 20/2021.

[14] Article 1 Section (14) jo. Article 9 Section (1) Government Regulation 20/2021.

[15] Article 9 Section (3) Government Regulation 20/2021.

[16] Article 11 Section (1) and (3) Government Regulation 20/2021.

[17] Article 14 and Article 22 Section (2) Government Regulation 20/2021.

[18] Article 15 Section (5) Government Regulation 20/2021.

[19] Article 15 Section (6) and Article 17 Government Regulation 20/2021.

[20] Article 20 Section (1) Government Regulation 20/2021.

[21] Article 23 Section (3) and (5) and Article 25 Government Regulation 20/2021.

[22] Article 27 jo. Article 29 Government Regulation 20/2021.

[23] Article 20 Section (2) Government Regulation 20/2021.

[24] Article 30 Section (1), (2), and (3) Government Regulation 20/2021.