RIGHT OF ACCESS TO AREA OF DEPRECIATED LAND REGULATION WITH THE LAW PERSPECTIVE OF LAND REGISTRY IN INDONESIA

A Holder of Right has rights and obligation in using his/her land. One of the obligations of a Holder of Right is providing access right to an area of land depreciated which borders with his/her land. The obligation is one manifestation of social function basis. In the social reality, a legal issue pertaining to access to the area of land depreciated bordering with the land ownership. The emerging law issue is the cancelation of Certificate of Right to Own with the issuance basis by taking for granted access right of area of land depreciated and violation of access to area of depreciated land deemed to be an act contradicting the law. The present study is a normative law research. The law research conducted began with inventorization of laws and regulations, judicial decree, governance or other references concerning right of access to an area of depreciated land to be further applied in the relevant cases. There are some legal vacuums (rechtsvacuum) concerning the obligation of Certificate of Right to Own to provide right of access to the area of land depreciated in accordance with the law perspective of land registry in Indonesia. The governance of right of access to area of land depreciated in the laws and regulations in Indonesia is merely stated in Article 13, 31 and 50 of The Government regulation Number 40 of 1996 concerning Right To Cultivate, Building Rights on Land and Right Over Land. The legal solution that can be applied in the relevant issues concerning the obligation of Certificate of Right to Own Holder to provide right of access to an area of depreciated land in Indonesia in by making a separate governance stated in the Laws of Right to Own. In some cases of area of land depreciated cases which have been decided by court, Judge has different consideration and multi-interpretations on the dispute settlement.


INTRODUCTION
Land is one of the most important elements in national development. In accordance with Article 4 paragraph (2) of Law No. 5 of 1960 concerning Basic Regulations on Agrarian Principles (hereinafter abbreviated and reffered as UUPA), stipulates that holders of land rights are given the authority to use the land if only needed for direct interests related to the use of the land within the limitation according to the UUPA and other higher legal regulations. The social function of any land rights must also always be a guideline for holders of land rights. 1 One of the obligations of holders of land rights as an embodiment of the social function of land rights is to provide access rights to a depreciated depreciated land which is bordered by their own land. The regulation of depreciated land access rights in Indonesian laws and regulations is only contained in Articles 13, 31 and 50 of PP 40 of 1996 which essentially regulates the obligation for holders of Right to Use, and Right to Build to provide solutions or waterways or other facilities for yard or depreciated land.
Before the UUPA becoming into force, the right to access depreciated land was regulated in the provisions of Article 674 through Article 710 of the Sixth Civil Code Chapter 6 on Servituut (Dedication of Yard). The area of depreciated land in Book II of the Civil Code was declared invalid after the birth of the UUPA. There is no regulation regarding the obligation to provide access to depreci-ated land for holders of Right to Own Sertificate both in the UUPA and in PP 40 of 1996, causing legal vacum in the society and also often legal issues related to access to depreciated land which is bordered by the land of right to own.
Legal issues that occur are the cancellation of Right to Own Sertificate on the basis of its issuance without regard to the right to access depreciated land and violations of the right to access depreciated land which are classified as acts against the law. On top of that, there is no regulation related to the procedure for accessing depreciated land,the sanctions applied if the rights holders violate the obligation to provide access to depreciated land or the mechanism for resolving problems related to access rights of depreciated land.
Based on the description above, it is necessary to study further about the right of access to depreciated land and to conduct research with the title " Right of Access to Area of Land Depreciated Regulation with The Law Perspective of Land Registry In Indonesia." The research on " Right of Access to Area of Depreciated Land Regulation with The Law Perspective of Land Registry In Indonesia " is a normative legal research. Legal research begins with an inventory of laws and regulations, decisions of judges and other references related to the right to access depreciated land to be applied in the case. This research begins by identifying the laws and regulations in the field of land law related to the obligation of the Right to Own Sertificate holder to provide access rights to the depreciated land and then apply that to cases that have been decided by the court. Based on the case, it is known that there is a legal vacuum (leemten in het recht) in terms of regulating the obligation of the Right to Own Sertificate holder to provide access rights to the depreciated land. This research is a prescriptive analysis. This study is intended to provide arguments for the results of research so as to give argumentation on the regulation of the rights of depreciated land that reflect the principles of justice and legal certainty.
In this study, the author uses several approaches, including: 1. statute approach 2. conceptual approach 3. case approach 4. case approach ANALYSIS AND DISCUSSION

Right Of Access To Area Of Land Depreciated Regulation With The Law Perspective Of Land Registry In Indonesia Right of Access to Area of Depreciated Land Regulation with The Law Perspective of Land Registry In Indonesia
The regulation of depreciated land access rights in Indonesian laws and regulations is only contained in Articles 13, 31 and 50 of PP 40 of 1996 which essential-ly regulates the obligation for holders of Right to Use, use rights and Right to Build to provide solutions or waterways or other facilities for yard or depreciated land.
The UUPA has made regulation regarding ownership rights in Article 20 to Article 27, however, is only about very basic matters. Article 56 states that as long as the law regarding ownership rights as referred to in Article 50 paragraph (1) has not yet been formed, the provisions of the local customary law and other regulations concerning land rights which give authority as or similar to referred to in Article 20 will be applied, as long as it does not conflict with the spirit and provisions of this law. Because the Law on Right to Own has not yet been formed, there is a legal vacuum related to the obligation for holders of Right to Own to provide access rights to the depreciated land. In facing the legal vacuum, the author tries to make legal finding.
The legal finding method can be applied in this case is analogy. The finding of the law by analogy takes place by seeking general rules from specific regulations and finally digging the principles within them.
Here are the statutory regulations which are made to be unwritten and general regulatons applied to some special occurence, while the statutory regulations do not include the special events, however, those certain special events are just similar to the events which are regulated by the statutoy regulations. 2 Right to Use, Right to Build and Right to Own are types of land rights. Based on this smililarity, so the holders of the Right to Own have the obligation to provide solutions or waterways or other facilities or conveniences for the yard or depreciated land area that are locked up as required by the holders of Right to Use, and Right to Build. Beside the analogy, the method of legal finding that can also be applied in dealing with this problem is by using legal narrowing. In narrowing the law, new exceptions or deviations from general regulations are formed. General regulations are applied here for specific legal events or relation with explanations or constructions by giving characteristic. 3 As explained above, each land right has a social function. This social function is a general rule of law. Based on the existence of the social function of land rights, holders of Right to Own must obey the obligation to provide the right to access depreciated land area. This is due to the authority of the holder of the right to own or use his land is not absolute, but also limited to the interests of others and public interests

Right of Access to Area of Depreciated Land Regulation in Several Countries
Studying land law in other countries as an alternative to finding solutions or solving problems that are being faced is not a wrong thing to do, as long as it is limited to comparative studies only. We will gain a lot of knowledge and views on how developed countries have governed their land law with wide comparative materials,.
The following will describe 3 different laws regarding the access rights of depreciated land area.These are Laws in the Netherlands which are regulated in Nieuw Burgerlijk Wetboek, Laws in Singapore 3 Ibid., p. 179-180. which are regulated in the Land Titles Act 1993 and Laws in Louisiana, United States which are regulated in the Louisiana Civil Code. This comparison of Laws are used as a comparative study to increase knowledge and understanding.

Right of Access to Area of Depreciated Land Regulation in Netherland
Civil law in the Netherlands is regulated in Nieuw Burgerlijk Wetboek which has been ratified since 1992. Nieuw Burgerlijk Wetboek is a substitute for Burgerlijk Wetboek which is still applied in Indonesia today. The right of access to a depreciated land in Nieuw Burgerlijk Wetboek is called erfdienstbaarheden. The definition of erfdienstbaarheden in Article 70 Nieuw Burgerlijk Wetboek is stated as follows: Een erfdienstbaarheid is een last, waarmede een onroerende zaak-het dienende erf -ten behoeve van een andere onroerende zaak -het heers erf-iszwa. Free translation: Erfdienstbaarheden is a charge put on a plot of land belonging to the recipient of the charge, for the benefit of the property of another person who gives the charge. Erfdienstbaarheden is regulated in Sixth Part (erfdienstbaar-heden) Book Five (Real Property Rights) Nieuw Burgerlijk Wetboek. Regulations in Nieuw Burgerlijk Wetboek consist of 15 articles.

Right of Access to Area of Depreciated Land Regulation in Singapore
The Land Law in Singapore is regulated in the Land Titles Act which was ratified in 1993. The regulation of the right of depreciated land access is regulated in Section 10 of the 1993 Land Titles Act. The term for the right of de-preciated land area in the Land Titles Act 1993 uses the term easement. The definition of easement in Article 29.4.7 of the Land Titles Act 1993 is stated as follows: An easement is an interest in land that gives a landowner a right or rights over the land belonging to another person. A common example is an easement giving a right of way. Free translation: The easement regulation in the 1993 Land Titles Act consists of 15 (fifteen) articles.

Right of Access to Area of Depreciated Land Regulation in Louisiana, United States
Louisiana (French: Louisiane) is a state in the United States. Land law in Louisiana is regulated in the Louisiana Civil Code. Servitude in the Louisiana Civil Code consists of 2 types of personal servitude and predial servitude, land, for example. Understanding personal servitude as Article 534 Louisiana Civil Code as follows: A personal servitude is a charge on a thing for the benefit of a person. There are three sorts of personal servitudes: usufruct, habitation, and rights of use. Furthermore, the definition of predial servitude as Article 646 of Louisiana Civil Code states as follows: A predial servitude is a charge on a servient estate for the benefit of a dominant estate. In this sub-section, the author only focuses on predial servitude and will not discuss further related to personal servitude. Predial servitude is regulated in Title IV on Predial Servitude which consists of 4 chapters and 129 articles.
There are some similarities or differences in the regulation of land access rights in these three countries. The similarity in regulating the access rights of depreciated land in the Netherlands, Singapore and Louisiana is as follows: 1. There are two parties involved, which are the owner of the land who gives the burden and the land owner who receives the burden; 2. The right of access to a depreciated land area includes the obligation of the landowner receiving the charge to allow something or not do something; 3. There are cost / retribution charged on parties who use access rights; 4. The right of access to a depreciated land continues even though the charge giver of land or charge receiver dialihkan/dibagi. The fundamental difference in regulating the right of access to depreciated land area in the three countries is related to registration obligations. In Singapore, the right to access depreciated land is a legal interest which generally must be registered. If not registered, there may not be any activity on the land. This is certainly different from that in the Netherlands and Louisiana, the two countries do not require the obligation to register the depreciated land access rights in an official register. One of the petitum inthe lawsuit filed by the Plaintiff is to declare the alley / road that is part of the land in Right to Own Sertificate 0031 and Right to Own Sertificate 0332 is as a facility for public use as the access to and from the Plaintiff's house. The decision of the Singaraja District Court which was later confirmed by the Denpasar High Court was to reject the Plaintiffs claim entirely.
The High Court's decision which confirmed the District Court's decision was overturned by the Supreme Court in cassation level. The decision of the Panel of Judges in the case stated that Right to Own Sertificate 0331 and Right to Own Sertificate 0332 were not legally binding and sentenced the Defendant to demolish the building which was on the road / alley used as the way in and out of the Plaintiff's house.
Seeing the differences of opinion, the author agrees with the Supreme Court Judges, it is true that Right to Own are strongest. However, the strongest characteristic does not mean that Right to Own Sertificate holders can implement their rights absolutely without regard to the interests of others. As stipulated in Article 20 of the UUPA, The right of ownership is hereditary right and be strongest and fullest right one can have on land that may be possessed by citizen and must be based on the principle of social functions of land rights. In addition to this, the reason for the District Judges and High Court Judges to reject the Plaintiff's suit is that the object of the dispute is not a public facility because it is only used for access to the Plaintiff's entry and not for the public. This opinion will lead to the perception that it does not matter causing harm to the interests of others, as long as it does not benefit the public / many people.

Civil case in Supreme Court Decision Number 2607 K / PDT / 2013 dated June 19 th 2014
This case occurred between Paul J.A. Doko as the Plaintiff against Rohana Kusuma and Daud Adoe as the Defendant. This case began with the Defendant's actions by closing the only entrance to the Plaintiff's house by making a foundation and fencing it with zinc because the Defendant assumed that the land to be included in his own land.
The Panel of Judges at the cassation level considered that the decision of the Kupang High Court which reinforced the decision of the Kupang District Court was inappropriate because it put the social functions over plots of land aside. In the trial, the Plaintiff can prove that the disputed land is the right of ser-vituut as referred to in the provisions of Article 674 of the Civil Code.
The author agrees with the Supreme Court Judges that each land has a social function. The Right to Own Sertificate holder has the authority to use or utilize his land. However, this authority does not mean that Right to Own Sertificate holders can exercise their rights absolutely without regard to the interests of others. The social function of land rights is always attached to the use and use of land.
The Panel of Judges of the Supreme Court in its consideration also stated that the disputed land was the right of servituut as regulated in Article 674 of the Civil Code. According to the author, the legal considerations are inappropriate. This is because the provisions of Article 675 of the Civil Code have been declared invalid by the enactment of the UUPA.

Civil case in Supreme Court Decision Number 1427 K/Pdt/2011 dated on April 24 th 2012
This case occurred between PT. Telekomunikasi Seluler as a plaintiff against Suwarno Soerinta as Defendant and Moh. Yahya as the co-Defendant. The dispute object is the road / access to the land sized 15m x 20 m which was used as a base for GSM Cellular Telecommunication System Base Transceiver Station (hereinafter abbreviated as BTS).
This case began with a lease agreement of 15 m x 20 m in size for the installation and placement of GSM Cellular Telecommunication BTS, which was made on September 16 th , 2002 un- During the lease agreement, the Co-Defendant sold his own land including the land leased by the Plaintiff as well as the way to enter the BTS to the Defendant. Since the Defendant had owned his land, the Defendant did not allow the Plaintiff's employees/technicians to take care of the BTS through the road that was allowed by the Co-Defendant.
One of the Plaintiffs' petitum suit is that the Defendant's actions that did not give permission for the Plaintiff's technician employees to use the road to the BTS and conduct maintenance on the BTS are illegal. Based on the petition, both the District Court, the High Court and the Supreme Court have the same opinion, namely that the act committed by the Defendant did not give permission to the Plaintiffs' Technician employees to walk down the road to the BTS and to treat BTS was the unlawful act.
The Panel of Judges in their consideration stated that the lease agreement for the installation and placement of BTS between the Plaintiff and the Defendant was made on September 16 th , 2002 Number: PKS.662 / LG.05 / CS.00 / X / 2002 is lawfull and still valid according to Article 1576 Civil Code.
The provisions of the article above stipulate that the sale and purchase does not remove the lease, unless agreed otherwise. The author agrees that the sale and purchase does not eliminating the lease, but this consideration is incomplete. This is because the object of dispute in question is actually not on the land with 15 mx 20 m in size that is used as BTS location, but the road / access to the 15 mx 20 m land which is used as a BTS location. For this reason, the Panel of Judges should also consider that land has a social function, wherein holders of land rights have the obligation to provide access to depreciated land area due to the existence of their land.

Civil case in Supreme Court Decree Number 1833K / Pdt / 2017 dated September 18 th 2017
This Plaintiffs are residential landowners located on Jalan Sekar Jepun VIII, Gang VIII C, Banjar Kertagraha, Kesiman, Denpasar (new residents). The Plaintiffs intend to build houses on each land of the Plaintiffs. However, the intention is constrained because The Defendant prohibited the Plaintiffs from accessing or using the access of Sekar Jepun VIII Road, especially in Gang VIII C.
One of the Plaintiffs' petitum suit is that the Plaintiffs have the right to also cross and use the access of Sekar Je-pun VIII Road, especially in Gang VIII C. Based on this request, the District Court, the High Court and the Supreme Court have the same opinion, which is rejecting the Plaintiff's suit entirely. The Panel of Judges' consideration is that Sekar Jepun VIII alley VIII C Denpasar Timur Denpasar City is not a road for public facilities or social facilities and is only intended for residents who own land and houses along the Sekar Jepun VIII alley VIII C alley East Denpasar City Denpasar The Panel of Judges in their consideration stated that a portion of Jalan Sekar Jepun VIII especially Gang VIII C was personal property of Defendant I according to RIGHT TO OWN SERT-IFICATE 2772 and Jalan Sekar Jepun VIII Gang VIII C East Denpasar that way is not a public road but only for residents who own houses and land along the road.
The judge's consideration rule out the principle that all land has a social function. Even though part of Sekar Jepun VIII Gang VIII C Road is privately owned by Defendant I in accordance with RIGHT TO OWN SERTIFICATE 2772, there is still an obligation to provide access to depreciated land areas. This is in accordance with Article 20 of UUPA jo. Article 6 of UUPA.
If the owner of the depreciated land wants to use the existing access road, the Judge may decide that the owner of the depreciated land is to pay compensation / rent to the Right to Own Sertificate holder whose land is used as an road access. So that justice is created for each party. thus there is no regulation in One of the plaintiff's petitum is to order the Defendant to return the position of the road that had been used by the Plaintiff as before. Based on the petition, the District Court, the High Court and the Supreme Court held the same opinion, which is ordering the Defendant to immediately vacate the location of the land and return the position of public roads that had been existing and used by the community to a normal condition.
The Panel of Judges in their con-sideration stated that the construction of the public road had been in existence since 1991 (in accordance with Right to Own Sertificate 00072) and that the Defendant I was only in 2001 in his measurement letter and there was no road plan according to what is stated in Right to Own Sertificate 00072. The judge's consideration is more like the obligation to provide access to roads because, historically there has been a road that was used previously as access to go in and out of the Plaintiff's house rather than the obligation of the Right to Own Sertificate holder to provide access to the depreciated area due to being covered by his land. The decision of the Panel of Judges that needs to be reviewed is ordering the Defendant to change the road plan and adjust the road position in accordance with the Plaintiff's Right to Own Sertificate 00072 and to propose it back to the National Land Agency. The panel of judges did not state that Right to Own Sertificate 1600 had no legal force, instead they ordered changes in physical data on Right to Own Sertificate 1600 The author agrees with the decision because it reflects more justice and expediency for the parties than by stating Right to Own Sertificate does not have legal power as in the Supreme Court Decision Number 509 K / Pdt / 2017 dated July 19 th , 2017.
This rarely happens, the District Court Judges granted the Plaintiffs' demands, which is ordering Defendant I to stop the construction and / or piling of roads on land until a court decision has permanent legal force.