THE RIGHT TO LAND TENURE IN THE RIPARIAN AREA OF CODE AT YOGYAKARTA CITY

A. Background of the Problem

Land as a natural resource has a role for the purposes of development of Indonesia and it is used as much as possible for the prosperity of the people as mandated by Article 33 paragraph (3) of the Act of 1945, which is then realized in the Basic Agrarian Law Act (BAL).

Earth according to BAL is the earth’s surface, and the body is beneath of the earth and which is under water. Earth’s surface is also called by the land according to the BAL. The land meant here does not set up ground in all its aspects, but only regulate one aspect, namely the land in terms of juridical called rights of land tenure. [1]

In Article 2 of the BAL is described that the state as an authority organization of the nation and the Indonesian people who have rights of control over the land, water, and outer space, including natural resources contained therein. The right of control is to give the authority to regulate the earth, water, and outer space, including natural resources contained therein for the greatest prosperity of the people, including maintaining the land. It is as mandated in Article 14 and 15 of the BAL.

Furthermore in the Article 4 paragraph (1) of the BAL estabslishes that based on the right of control from the state then it is determined the existence of a variety of rights to the earth’s surface, called the ground, which can be provided to and be owned by people who either alone or together with the other as well as legal entities. The rights over the land meant are stipulated further in Article 16 of the BAL.

The BAL gave the task to the Government to implement land registration throughout Republic of Indonesia’s territory by the aim of ensuring legal certainty and legal protection by giving a certificate as proof of entitlement. Giving certificate as proof of land rights does not necessarily provide legal protection when it comes to land ownership in the riparian area.

Article 8 of Government Regulation No. 38 of 2011 on the River specifies that “the riparian area includes space on the left and right of the riverbed for the river which does not have the dike, or in between the boarder lines and the outer edge of the foot ridge to the dike river “.

In the city of Yogyakarta, there are three major rivers, and one of the rivers is the Code River. This study focused on the Code River. On the border of the Code River, there is a residential area. To keep in mind, the function of riparian area is under Article 5, paragraph (5) of Government Regulation No. 38 of 2011 on the River is “a buffer space between river and terrestrial ecosystems, so that the river functions and human activities are not mutually disturbed.”

Related with the background above, the author is encouraged to conduct further research to assess and pour in the form of a thesis entitled: “THE RIGHT TO LAND TENURE IN THE RIPARIAN AREA OF CODE AT YOGYAKARTA CITY “.

B. Problem Formulation

Based on the background of the problem, the problem can be formulated as follows:

  1. How is the land tenure tenure in the riparian area of Code at Yogyakarta City?
  2. How is the the legal protection guarantee in the riparian area of Code River?

C. Research Method

This research was juridical empirical research which was to look at the reality of law in society. The research was used to look at the legal aspects in social interaction in the community, and served as a support to identify the non-material findings of law for the purposes of legal writing. [2]

Analysis of the data was used in this study is a qualitative method. Data were collected through library research and field research analyzed qualitatively that was a way of research that produced descriptive data, which was what was stated by respondents and informants in writing or orally, and also the real behavior, that was researched and studied as a whole thing. After the data was analyzed, the results would be presented descriptively by outlining and describing what is in accordance with the problems studied.

D. Reserch Result and Discussion

1.The land tenure tenure in the riparian area of Code at Yogyakarta City

a. The Rights of Control of the State

Article 2 paragraph (2) item 1 of the BAL determines that the right of controls of the State provides the authority to regulate and organize designation, the use, supply and maintenance of the earth, water, and outer space. considering the provisions of Article 2 paragraph (2) of the BAL, then the Government made the general plan of the inventory, allocation, and use of the earth, water and outer space and natural wealth contained therein, as mandated in Article 14 of the BAL. This became the basic for the issuance of the Law on Spatial planning.

According to the Article 7 paragraph (2) of Law No. 26 of 2007 on spatial planning, it determines that “the State shall authorize the spatial planning implementation to the government and the regional governments”, and considering n the provisions of Article 3 PP 26 Year of 2008 on the National Spatial planning, it determines that the National Spatial planning becamse a guidelines for spatial planning City / County, then the City Government of Yogyakarta established Yogyakarta Regional Regulation No. 2 of 2010 on Spatial planning Yogyakarta.

b. Provisions of Spatial planning of Yogyakarta City Area based on the Regional Regulation No. 2 Year 2010

Spatial planning is a process to determine the structure and pattern of spaces. In this study focused on the spatial pattern plan. The provision of Article 58 Yogyakarta Regional Regulation No. 2 of 2010 specified that: “the spatial pattern plan consists of: a Regional Protected Areas; b. the regional cultivated area “. The Regional Protected Areas includes: a. the local protected areas; b. Regional cultural heritage and science; c. Disaster-prone areas.

The provision of Article 60 paragraph 1 stated that: “The local protected area is the riparian areas and open green spaces of Yogyakarta”. This means the ripiarian area based on the spatial pattern plan is a protected area and an area of open green space.

Effort to realize orderly the spatial (a form of spatial structure and spatial patterns) was then the need to control space utilization. The provision of Article 98 specified that: “The provision of space utilization control of urban areas covering general provisions of zoning regulations, licensing requirements, the provision of incentives and disincentive, as well as the direction of sanctions”.

The provisions of zoning regulations in the Article 100 paragraph (1) letter a Perda No. 2 Year 2010 stated that: “Regulation of the zoning of protected areas are such as ripiarian area”. The mean of the article was the riparian is a protected area. Article 1 number 21 Regional Regulation No. 2 of 2010 established that “protected area is an area defined by the primary function of protecting the preservation of life which includes natural resources and man-made resources”. So the riparian area was designated as protected areas due to conserve the river functions.

According to the Control Head of Bappeda, “the Code River is a river with the dike, and based on the Yogyakarta Regional Regulation No. 2 Year 2010, the land in the riparian Code is designated as a protected area”.[3] Criteria of the riparian area for the river with the dike based on the zoning regulations under the direction of Yogyakarta which is an annex of Yogyakarta City Regulation No. 2 Year 2010 (contained in Appendix) are the land along the river banks woth the dike by a width of at least five (5) meters from the foot of the outside embankment.

The spatial planning of Yogyakarta in 2010 was incompatible with the existence of spatial at riparian Code since 1984. In fact that the existing spatial along the Code River riparian contained dwelling houses which had been long since built on the land which has been long well mastered. Viewed from a legal perspective, there was a discrepancy between the rules (das sollen) and the actual circumstances (das sein).

c. The land Tenure of the Riparian Code River, District Danurejan, Yogyakarta City

Riparian area is part of the River. According to the Article 3, paragraph (1) PP 35 1991 on the river determined that “the river is controlled by the State and State assets”, and based on the Article 100 paragraph (1) letter a Regional Regulation of Yogyakarta No. 2 of 2010: “a ripiarian area is a Protected Area”, so based on the laws that is the riparian area is the State’s land because the riparian is a part of the river, and the riparian area is a protected area, but in fact when viewed from a thematic map of the Land Office of Yogyakarta (attached) that the land along the riparian of Code River Yogyakarta City more specifically is located in District Danurejan with status od prosperity rights.

However, the fact is that the State land is controlled by the residents which are then used to set up dwelling house. According to Mrs. Sumini, she had been living in the riparian of Code River approximately 20 years. She lived there due to come with her husband, while her husband lived there since childhood. Mrs. Sumini had built the house for 20 years, but she built the house on land with the property rights of others. According to her statement, the holder of property rights on the land leased the land to Mrs. Sumini and neighbors next to her to constructed dwelling houses then. [4]

Regarding the ownership rights to land and buildings thereon had been long existed before the spatial planning Yogyakarta, it was proven by the statements of Mrs. Tini, Mother Kartilah, and Mr. Samhaji, they had stayed long in the riparian Code more than 10 years, and they bought a house with the land ownership status, while the process of buying and selling were through PPAT. [5]  So that, they had belonged the rights to land and buildings before the regulations on spatial planning Yogyakarta was established.

Regarding the ownership of property rights in the riparian Code, according to Subsection Head of Determination Rights of the Land Office, at Yogyakarta, that “in fact, the rights of tenure in riparian Code had been long owned by local residents for generations and houses located in the riparian Code River had been long established before the existence of regulations on the spatial planning Yogyakarta. BAL was just forced in Yogyakarta (DIY) in 1984, after the release of President Order No. 33 of 1984 on the fully implementation of the BAL in DIY. Prior to the enactment of BAL in DIY, a mail proof of ownership of land in Yogyakarta, one of them was letter C and indigenous rights such as the right of hereditary.

So that, the occurrence of such property rights was as customary hereditary, and had occupied the land since long time. After the ennactment of the BAL at DIY then held PRONAS 1984 which was noted the land ownership with the status of property rights registered in the land register at the land office and land rights holders were given a certificate as proof of ownership letter

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