Notaries also have the authority to make mortgage deeds. Although the Mortgage Deed (APHT) is made by PPAT, Notaries can make a power of attorney to encumber a mortgage which is a power from the debtor to the creditor to encumber a mortgage on the property used as collateral. In the case of division of joint rights to land, Notaries are authorized to make a deed of division of joint rights. This deed is required when several parties have joint rights to a plot of land and want to divide these rights among them. Notaries can also make other deeds related to land such as nominee agreement deeds, land ownership statement deeds, or heir statement deeds which are often required in the process of managing land rights.

It is important to note that although Notaries have the authority to make these deeds, these deeds cannot be used directly to register the transfer of land rights at the Land Office. For registration of transfer of land rights, a deed made by PPAT is still required. In practice, many Notaries also serve as PPAT. In this case, they can make both deeds that are the authority of the Notary and deeds that are the authority of the PPAT. However, it is important to distinguish their capacity when making these deeds.

Conditions for Making Land Deeds by Notaries

The making of land deeds by Notaries must meet various conditions regulated in laws and regulations. These conditions aim to ensure the validity and legal force of the deed made. In general, these conditions include formal and material aspects that must be met by the Notary and the parties involved in the making of the deed. The Notary must ensure that he is authorized to make the deed.

This authority includes authority based on position (ratione officii) and authority based on work area (ratione loci). Notaries can only make deeds within their jurisdiction and are not authorized to make deeds outside their work area, except under certain conditions permitted by law. Notaries are required to know the parties who will sign the deed. This is important to ensure that the person appearing really has the authority and capacity to take legal action that will be stated in the deed.

Notaries must check the identity of the parties through official documents such as ID cards, passports, or other valid identity documents. Notaries must ensure that the parties have the capacity to take legal action. This means that the parties must be adults (at least 18 years old or married) and not under guardianship. If one of the parties is not capable, then they must be represented by their legal guardian.

In the making of a land deed, the Notary is obliged to check the status of the land that is the object of the deed. This includes checking land certificates, proof of payment of Land and Building Tax (PBB), and other documents related to the land. This check is important to ensure that the land that is the object of the deed is truly owned by the entitled party and is not in dispute. The Notary must ensure that the contents of the deed to be made do not conflict with statutory regulations, public order, and morality. The Notary has an obligation to provide legal counseling to the parties regarding the contents of the deed and its legal consequences.

In the process of making a deed, the Notary is obliged to read out the contents of the deed in the presence of the parties and witnesses. This reading aims to ensure that all parties understand the contents of the deed and agree with its contents. After reading, the deed must be signed by the parties, witnesses, and the Notary at that time. The Notary must ensure that the deed made meets the formal requirements as regulated in the Notary Position Law. This includes the use of good and correct Indonesian, the inclusion of the time and place of making the deed, and the numbering of the deed in accordance with applicable regulations.

In making a deed relating to land, the Notary must pay attention to the specific provisions that apply, such as the obligation to pay the Acquisition Duty on Land and Building Rights (BPHTB) for land rights transfer transactions. The Notary is obliged to keep the deed minuta, which is the original deed containing the signatures of the parties, witnesses, and the Notary. This deed minuta must be kept as part of the Notary's protocol and may not be removed from the Notary's office except in matters specified by law.

After the deed is completed, the Notary is obliged to provide a copy of the deed to the entitled parties. This copy of the deed has the same evidentiary power as the original as long as it is not proven otherwise. The Notary is also obliged to explain to the parties about the next procedures that need to be carried out, especially if the deed requires follow-up such as registration at the Land Office.

Land Deed Making Procedure by a Notary

The procedure for making a land deed by a notary begins with the preparation stage. At this stage, the interested parties appear before the notary to convey their intentions and objectives. The notary will then explain the procedures, requirements, and documents required for making the deed. This includes the identity documents of the parties, proof of land ownership, and other supporting documents.

After the preparation stage, the notary will check the completeness and validity of the documents submitted. This includes checking the land certificate at the local Land Office to ensure the status of the land and whether there are any encumbrances or disputes over the land. The notary will also check proof of payment of related taxes, such as Land and Building Tax (PBB). The next step is to verify the identity and legal capacity of the parties. The notary must ensure that the people who appear are truly the entitled parties and have the authority to perform the legal acts that will be stated in the deed. This includes checking identity documents and, if necessary, documents showing the authority to act such as a power of attorney or court order.

After all documents and identities have been verified, the notary will begin drafting the deed. In this process, the notary will formulate the wishes of the parties into the form of a notarial deed in accordance with applicable legal provisions. The notary must ensure that the contents of the deed do not conflict with statutory regulations, public order, and morality. Before signing the deed, the notary will read and explain the contents of the deed to the parties. This stage is very important because it provides an opportunity for the parties to fully understand the contents and legal consequences of the deed they will sign. If there is a part that is not understood or needs to be changed, the parties can ask questions or request changes at this stage.

After reading and explanation, if all parties agree with the contents of the deed, then it is continued with the signing of the deed. The deed must be signed by the parties, witnesses, and the notary. This signing must be done in the presence of the notary and done on the day, date, and place as stated in the deed. After signing, the notary will record the deed in the repertorium, which is a book of notarial deed lists. This recording is important for the administration and archiving of the deed. The notary will also keep the deed minuta, which is the original deed containing the signatures of the parties, witnesses, and the notary, as part of the notary's protocol.

The notary will then issue a copy of the deed to be given to the entitled parties. This copy of the deed has the same evidentiary power as the original as long as it is not proven otherwise. The notary will also explain to the parties about the next steps that need to be taken, especially if the deed requires follow-up such as registration at the Land Office. In the case of a deed relating to the transfer of land rights, the notary will inform the parties about the obligation to pay related taxes, such as the Acquisition Duty on Land and Building Rights (BPHTB) and Income Tax (PPh) on the transfer of land rights. The notary can assist in the tax calculation process, but payment remains the responsibility of the parties.

Finally, the notary will keep the files related to the making of the deed as part of the notary's protocol. This includes the deed minuta, copies of supporting documents, and other notes relating to the making of the deed. This storage is important for evidentiary purposes in the future and for the purpose of supervising the performance of the notary.

Contents of Land Deed

In general, the rules regarding the contents of land deeds must refer to Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning Notary Positions (UUJN), Government Regulation Number 24 of 2016 concerning Regulations on the Positions of Land Deed Officials, and Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles (UUPA). Based on the UUJN, every notarial deed, including land deeds, must contain the beginning of the deed or the head of the deed, the body of the deed, and the end or closing of the deed.

The beginning of the deed must include the title of the deed, the deed number, hour, day, date, month, and year, as well as the full name and domicile of the notary. The body of the deed contains a description of the identity of the appearers, information regarding the position of acting appearers, and the contents of the deed which are the will and desire of the parties concerned. The end or closing of the deed contains a description of the reading of the deed, signing and place of signing, as well as the identity of the deed witnesses.

In the context of land deeds, the contents of the deed must contain clear and complete information regarding the land object that is the subject of legal action. This includes physical land data such as location, boundaries, and land area, as well as juridical data such as the type of land rights, certificate number, and land ownership history. The clarity and completeness of this information is important to avoid disputes in the future. The land deed must also contain information regarding the parties involved in the legal action. This includes the complete identity of the parties, including name, place and date of birth, occupation, position, domicile, and address. If one of the parties acts as an attorney, the basis of the power of attorney must also be stated.

The contents of the land deed must clearly describe the legal actions taken by the parties. For example, in a land sale and purchase deed, the object being traded, the sale and purchase price, the method of payment, and the rights and obligations of each party must be clearly described. In a land grant deed, the object being granted and the conditions of the grant, if any, must be explained.

the contents of the land deed include clauses that are necessary to protect the interests of the parties and ensure the validity of the legal action. This may include a clause on the seller's guarantee that the land is free from dispute, a clause on the transfer of risk, or a clause on dispute resolution if a dispute arises in the future. In land deeds relating to the transfer of rights, such as sale and purchase or grants, the contents of the deed must include an explicit statement from the original owner regarding the release of his rights and a statement from the recipient of the rights that he accepts the transfer of rights. This is important to ensure that there is a clear agreement between the parties regarding the transfer of land rights.

The contents of the land deed must also contain information regarding the documents that form the basis for making the deed. This may include land certificates, previous deeds relating to the land, proof of tax payment, and other relevant documents. This inclusion is important to provide a strong legal basis for the legal actions stated in the deed.

The contents of the land deed are written in Indonesian that is clear and easy to understand. The use of technical legal terms must be accompanied by an adequate explanation so that it can be understood by the parties. If the use of a foreign language is required, it must be accompanied by a translation in Indonesian. The contents of the land deed must reflect the principles of contract law and land law that apply in Indonesia. This includes the principle of freedom of contract, the principle of good faith, the principle of pacta sunt servanda (agreements must be kept), as well as principles in the UUPA such as the principle of nationality and the principle of the social function of land. Fulfilling these principles is important to ensure the validity and legal force of the deed that is made.

Dispute Resolution

Disputes related to the making of land deeds can arise from various factors, such as errors in the making of the deed, differences in the interpretation of the contents of the deed, or the existence of parties who feel aggrieved. The settlement of this dispute has several paths that can be taken, both through litigation and non-litigation channels. Dispute resolution usually begins with an attempt at deliberation between the disputing parties. In this stage, the parties can discuss the existing problems and try to reach an agreement amicably. The notary who made the deed can act as an informal mediator in this process, providing explanations and clarifications regarding the contents of the deed that is the source of the dispute.

If deliberation is unsuccessful, the parties may choose formal mediation. Mediation is a dispute resolution process through negotiations to obtain an agreement between the parties with the assistance of a mediator. In the context of land disputes, mediation can be carried out through the local Land Office or other mediation institutions recognized by the government.

Arbitration is also an option in resolving land deed disputes. In arbitration, the parties submit the dispute resolution to one or more arbitrators who will issue a binding decision. The advantage of arbitration is that the process is faster and more confidential than court proceedings.

If non-litigation settlement efforts are unsuccessful, the parties may bring the dispute to court. For disputes related to land deeds, lawsuits are usually filed with the local District Court. In this process, the judge will examine the evidence and statements of the parties before rendering a decision.

In cases where the dispute involves alleged violations of the code of ethics or errors in the making of the deed by a notary, the aggrieved party may file a complaint with the Notary Supervisory Council. This council will conduct an examination and may impose sanctions on the notary if proven to have committed a violation.

For disputes relating to land administration, such as errors in the issuance of land certificates, the parties may file an objection to the Land Office or the National Land Agency (BPN). BPN has an internal mechanism for resolving land disputes, including the cancellation or correction of land certificates if errors are found.

In some cases, land deed disputes may involve alleged criminal acts, such as document forgery or fraud. In this situation, the aggrieved party may report the case to the police for further investigation. It is important to note that in the dispute resolution process, a notarial deed has a position as strong evidence. However, the evidentiary power of a notarial deed can be canceled if it can be proven that there are defects in its making or elements of forgery. Therefore, evidence in land deed disputes often focuses on the deed-making process and the validity of supporting documents.

The settlement of land deed disputes often requires considerable time and expense. Therefore, the prevention of disputes through the careful and thorough preparation of deeds, as well as clear communication between notaries and the parties, is a very important step. Notaries have a key role in this, not only in making accurate and legally compliant deeds, but also in providing legal education to the parties to ensure a correct understanding of the contents and legal consequences of the deed being made.

Conclusion

Notaries have the general authority to make authentic deeds, including those relating to land, based on the Notary Position Law (UUJN). There is a division of authority between notaries and Land Deed Officials (PPAT) in the making of land deeds. Notaries can make several types of deeds related to land such as land sale and purchase binding deeds and land power of attorney deeds, while PPATs have special authority to make deeds of transfer of land rights.

The making of land deeds by notaries must meet the formal and material requirements stipulated in the laws and regulations, including verification of the identity of the parties and checking the status of the land. The procedure for making land deeds by notaries includes the preparation stage, document examination, identity verification, deed drafting, reading and explanation of the contents of the deed, signing, as well as storage and issuance of copies of the deed.

The contents of the land deed must contain complete information about the land object, the parties, the legal actions taken, as well as clauses that protect the interests of the parties. The settlement of disputes related to land deeds can be carried out through non-litigation (deliberation, mediation, arbitration) and litigation (court) channels, taking into account the evidentiary power of notarial deeds as strong evidence. Harmonization of laws and regulations is needed to clarify the boundaries of the authority of notaries and PPATs in the making of land deeds, as well as efforts to prevent disputes through the careful and thorough preparation of deeds.

References

  1. Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning Notary Positions (UUJN)
  2. Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles (UUPA).
  3. Government Regulation Number 24 of 2016 concerning Amendments to Government Regulation Number 37 of 1998 concerning Regulations on the Position of Land Deed Officials