Regulation on Abandoned Land: A Comparative Study between Indonesian and Australian Laws* By: Hery Listyawati** Abstract This

research studies the difference between the two systems in dealing with how to use land in an effective way. This research was done by way of library research and qualitative analysis at the Australian National University in the academic year 2003-2004. The research discovered that adverse possession used by Australian law was similar to that used by Indonesian law under the old agrarian law (before the Basic Agrarian Law was enacted). There are many differences between the two regulations. The differences are caused by: 1) The land law policy used by the two countries; 2) The geography and demography between the two countries; 3) Land disputes in Indonesia which is more crucial rather than in Australia; 4) more land in communal possession in Indonesia rather than in Australia. Finally, the Governments Regulation No.36/1998 has to be reviewed in order to make it more practical, and effective, give more legal certainty, and give more justice to community, especially the local community in which the land is located. On the other hand, it is better for Australian government to give more legal security to landowner by giving more legal requirements to someone to possess someone else land, because in the long run the population becomes bigger and that makes land cases becomes more complicated. Key words: Adverse Possession, Vacant Land or Abandoned Land

I. Introduction Land should be used effectively to accelerate land productivity and to fulfil the basic need of human beings as a place for living. In fact, there are still many lands in many places, which are left vacant and considered to be useless land or abandoned land. It happens because
* Seminar and research report done at the Australian National University in the academic year 2003-2004 ** A lecturer of Gadjah Mada University, faculty of Law. The writer wishes to thank Dr.Daniel Fitzpatrick, from the Law School Australian National University, who has given important suggestions as well as corrections in support of the completion of this paper.

now land does not merely function as a place for living, but it tends to be a means of investment and speculation, especially for rich people or capitalist ones. To eliminate this phenomenon, Indonesia has promulgated a regulation in the form of government decree No.36 of 1998 concerning ordering and reusing abandoned land throughout the country. In Australia, in such states as New South Wales (NSW), Victoria (Vic), Queensland (QLD), South Australia (SA), Western Australia (WA) and Tasmania (Tas), there is a legal doctrine of adverse possession to give rights to someone who possess someone elses land or vacant land or abandoned land within the limitation period stated by statutes. This research will study the difference between the two systems in dealing with how to use land in an effective way. This research was done by way of library research and qualitative analysis. The result of the research will be written in a form of paper, which consists of four discussions. First, it contains an explanation about adverse possession in Australia. Second, it is about Governments Regulation No.36 of 1998 in Indonesia. Third, the discussion involves analysis. Finally, it sets out a conclusion. The result of the research, hopefully, will be useful for land law reform in Indonesia.

II. Adverse Possession on Land in Australia The concept of Adverse Possession Adverse Possession is a right to possess a peace of land, which has been left vacant. The possessor acquires a title to the land, which is good as against the whole world after remaining in possession of land for the period specified by the legislation with respect to limitation of action. The legislation varies in each state in Australia. The true owner of land may recover it from the adverse possessor before the limitation period has run;

afterwards the owners right of action and title to the land are extinguished and cannot be recovered it from the adverse possessor.1 For example, Mr Y brought a piece of land in 1980, but he did not possess it. Then in 1981 Mr X possessed the land, which had left vacant. If Mr Xs possession had passed the limitation period specified by the legislation (12 years in NSW, WA, Tas, QLD; 15 years in SA, Vic), then in 1996 he gained a right of ownership (Vic), and Mr.Ys right of action and title to the land were extinguished, unless he evicted Mr. X before limitation period had completed. Thus, in the common law system, the concept of adverse possession derives from the concept, which says that possession is the root of title. Possession is a particular relationship of control by a person over land. Whereas title is a bundle of rights associated with that relationship of possession, or in other words, a group of rights that result from possession but which survive its loss; this includes the right to possession.2 Possession is also a right over land as everyone has a right to possess land. So everyone who is in possession has a greater right than one who is out of possession and has no right. He/she could exclude the whole world until another person could demonstrate the stronger right, for example the true owner. So the concept of adverse possession comes from the implementation of the law and is never concerned with any political matters. Thus, it does not need a state approval or a state permission. In relation to private land, in New South Wales, Queensland, Western Australia and Tasmania, the period is 12 years3 and in Victoria and South Australia, the period is 15 years.4 The consequence is that a title to land can be lost by adverse possession due to the principle of limitation, the principle of fixing a finite time in which an action may be
1 Joycey G Tooher, et all, Introduction to Property Law, 3rd edition , Australia: Butterworths, 1997, p 20. 2 M A Neave, at all, Property Law, Cases and Materials, 6th edition, Australia : Butterwords, 1999, p 111. 3 Limitation statutes : NSW: s 27(2); Qld: s 13; WA: s 4; Tas: s 10(2). 4 Limitation statutes: Vic: s 8; SA: s4.

instituted. One thing that should be noted is that in the Northern Territory (NT) and the Australian Capital Territory (ACT), title to land cannot be extinguished by adverse possession.5 The concept of adverse possession is mentioned in 1980 Act Paragraph 8(1) Sch 1: No right of action to recover land shall be treated as accruing unless the land is in the possession of some person in whose favour the period of limitation can run; and where under the preceding provision of this Schedule any such right of action is treated as accruing on a certain date and no person is an adverse possession on that date, the right of action shall not be treated as accruing unless and until adverse possession is taken of the land. (Vic.) It means that if registered proprietor wants to recover his land rights from the adverse possessor, he/she must actually brings/ starts legal proceedings before the limitation period comes to an end in order to stop the possibility of losing ownership to adverse possessor. So, if registered proprietor does try to evict adverse possessor before limitation period is complete, the adverse possessor then lose his right of possession. To apply this concept, registered proprietor must not be aware of the adverse possessor, because if there is an agreement between registered proprietor and adverse possessor, then there is no adverse possession. The principle of limitation is the exception to the principle of indefeasibility of title by the Torrens System. It establishes the right of an adverse possessor to deprive a registered proprietor of his or her title. There are a number of reasons of policy in favour of the principle of limitation, such as: It is better that the negligent owner who has omitted to assert his right within the
5 Land Title Act (NT), s 198; Land Titles Act (ACT), s 5(a).

prescribed period, should lose his right than an opening should be given to interminable litigation;6 The principle encourages the use and development of land and makes more certain the validity of title, thereby encouraging the alienability of land;7 A person who has long been in undisputed possession should be able to deal with the land as owner.8 Holders of rights should not sleep on their rights; problems of proof become more difficult the longer the period of time between the disputes arising and the action being heard; the status quo should be recognised at the same stage, and there should be a certain end to litigation.9 Adverse Possession against Crown Land Adverse possession against Crown land (for example: State Land, statutory bodies representing Crown, or municipal councils as the registered proprietor) varies from states to states, but most of them are much longer than the ordinary land. In South Australia the period is 60 years;10 while in New South Wales (Limitation Act 1969 ss 27:1) and Tasmania the period has been shortened to 30 years.11In Victoria an intruder cannot gain title by taking adverse possession against Crown land (Limitation of Action Act s.7), as well as in Northern Territory (Land Title Act (NT), s 198) and Australian Capital Territory ( Land Titles Act (ACT), s 5[a]). Adverse possession limitation period against Crown land is much longer than for
6 Sir Thomas Plumer MR in Marquis Chomondeley v Lord Clinton ( 1820) 2 Jac & W 1 at 139-140; 37 ER 527 at 577 7 Peter Butt, Land Law, Erskineville, NSW : Lawbook Co, 4th edition, 2001, p.819-820 8 Sir Robert Megarry and H.W.R. Wade, The Law of Real Property, 6th edition, London : Sweet & Maxwell Limited, 2000, p1303 9 Jacson, The Legal Effects of the Passing of Time (1970) 7 MULR ,p.409 10 South Australia Co v City of Port Adelaide [1914] SALR 16 11 NSW, s 27(1) and s 27(4); Tas, s 10 (1) and s 10 (4),(5).

private land, and in some States or territories like ACT, Victoria, and Northern Territory does not exist at all because of the doctrine of tenure and the concept from Mabo. The doctrine of tenure arose as a result of English common law being applied to Australia, Crown becomes the universal ultimate owner of land and all interests had to be granted by Crown. The concept from Mabo states that Crown has radical title and absolute beneficial ownership. Radical title is ultimate, final title, and over lordship. Absolute beneficial ownership means that it is not derived from anyone and has full range of rights. The absolute title of the Crown is not merely confirmed to all land within the colonies, but also to all uninhabited lands and foreshores. In some states, therefore, this doctrine has been used to deny the possibility of adverse possession over Crown (i.e Stateowned) land. Commencement of the Limitation Period The limitation period commences from the time of action accrues. Section 8 of the limitation Act 1958 (Vic), provides as follows: No action shall be brought by any person to recover any land after the expiration of fifteen years from the date on which the right of actions accrued to him or, if it accrued to some person through whom he claims, to that person. Under the 1980 Act, the person claiming a possessory title must show either (1) discontinuance by the paper owner (registered proprietor) followed by possession or (2) dispossession of the paper owner. Discontinuance occurs when a person comes in and drives out the others from the possession, while dispossession occurs when the person in possession leaves the possession and is followed into possession by other persons. A person claiming to have adverse possession must fulfil both factual possession and the requisite intention to possess (animus possidendi). Possession is never adverse within the

meaning of the 1980 Act if it is enjoyed under a lawful title. Therefore, if a person occupies or uses land by licence of the owner with a paper title and his licence has not been duly terminated, he cannot be treated as having been in adverse possession as against the owner with the paper title.12 Requirements of Eligible Adverse Possessor To be an eligible adverse possessor, ones should demonstrate:

1. Factual possession Factual possession denotes an appropriate degree of physical control reflecting acts of exclusive control (acts of ownership). He or she must perform actions characteristic of ownership of land with the intention of enjoying the land to the exclusion of the world at large. In order to determine whether there is a sufficient degree of exclusive control, the particular circumstances of the case must be analyzed closely. Thus, the occupation of premises evidenced by physical presence, by carrying out of improvements or repairs or by the erection of buildings will constitute strong evidence of possession.13 The factual control must be without consent of the owner. It means that adverse possession must not be under a license from or a contract or some like arrangement with the true owner. A caretaker, lodger, or tenant cannot be in adverse possession of the property.14 2. Requisite intention to posses (animus possidendi) Doing the following objective test, we can recognize the requisite intention to
12 Sackville & Neave, Property Law Cases and materials, 6th edition, Australia : Butterworths, 1999, p120- 121. 13 Adrian Bradbrook, et all, Australian Real Property Law, 3rd edition, Riverwood NSW : Ligare, 2002, p 634. 14 Joycey G Tooher, et all, Introduction to Property Law, 3rd edition , Australia : Butterworths 1997, p 21.

posses: a. Intention to possess property; b. Intention to exclude whole world including true owner. c. If vacant block with intense future use, adverse possession require clear evidence of two elements. First, possession for any period of time is prima facie evidence of a right to possession of land. Second, possession at any time itself confers a right, which is good against anyone who cannot show a better right to possession. Thus possession itself is an enforceable property right, even before the termination of the limitation period. Once the limitation period terminates, the doctrine of adverse possession simply means that possession becomes legal ownership. Adverse Possession and the Torrens System In Australia there are two systems of title to land, which exist side by side: the general law system (Common Law system) and the Torrens system. Whilst there are many differences between the two systems, the most important difference is that registered title in Torrens title is much stronger than that in common law system. In Torrens, registration itself gives good title, even though the underlying transaction was void or legally defective. An exception occurs when the registered proprietor has himself committed fraud. Therefore, with respect to the Torrens System land, the register is intended to provide certainty of title. This principle is called indefeasibility of title. The Common Law system, which is considered to be the old system, confirms the Nemo Dat rule, which says that a purchaser will never obtain a better title than the vendor has. So, if the underlying transaction was legally defective, a good faith purchaser will never be entitled to obtain the land title. Another difference is that the title to land under the general law is

transferred by deed under seal, whereas title to land under the Torrens system is transferred by means of an entry in a public record, known as the register. Title to land under Torrens system can be acquired by adverse possession in both New South Wales and Victoria and the general principles of the acquiring apply equally to land under the common law system. So, the principle of adverse possession remains the exception of the principle of indefeasibility of title in the Torrens system. However, adverse possession to be effective under the Torrens system it is subject to additional requirements. For instance; in NSW, since 1979 an adverse possessor who has been in possession of a whole parcel of land for the statutory period may not only become the registered proprietor, but also has rights against both any third party and against the original owner of the land (see Real Property Act Pt VI A ss 45B-45G inclusive). So that title to small areas of land cannot be acquired by adverse possession (Real Property Act 45B:1). Another feature is that because registration is so important, the adverse possessor should register his/her right of the land after completing the statutory period in order to get the benefits of the land full ownership. This is a necessary precaution because otherwise his/her interest can be lost as against a purchaser from the still registered proprietor who in turn acts without fraud and registers his/her apparent interest of the land (Real Property Act s 45D: 4). Upon the registration in good faith of the right of the purchaser, the time of the adverse possession commences to run afresh (start again from zero) against the new registered proprietor who may recover the land at any time before the limitation period has again expired. However, if there is a fraud, for example a purchaser colludes with a registered proprietor to defeat the rights of an adverse possessor, the transfer of title would

not effect the rights of the adverse possessor, and time would continue to run as though the transfer of title had not taken place.15 Below is an example case to clarify the above explanation. In 1980, in NSW, a registered proprietor left his land vacant. In 1981 some one else possessed the land. In 1993 the registered proprietor sold the land. If the adverse possessor had not registered the land, he would lose his interest against the purchaser if that purchaser had acted without fraud as the new registered proprietor. With a transfer of title without fraud, the time of the adverse possession would start afresh in favor of the adverse possession and against the new registered owner. In Australia, actually 95 % of private land is now Torrens land. According to the Torrens System, acquisition of title by adverse possession cannot be applied over Crown land, statutory bodies representing the Crown, or municipal councils as the registered proprietor (Real Property Act s 45D[3] [NSW]).

III. The Indonesian Context: the Governments Regulation of the Republic of Indonesia on Abandoned land (Governments Regulation No.36 of 1998) A. Concept of abandoned land A land is considered to be abandoned if the titleholder does not use the land properly that is, it is not suitable with the nature and the objective of the land title as well as with the regional land planning; or does not take care of it including leaving the land vacant for a certain period of time as stated by the minister of land. The consequence is that the state can revoke the owners land rights and the land then remains state land (Chapter III, s.3 of Governments Regulation).
15 Joycey G Tooher, et all, Introduction to Property Law, 3rd edition , Australia : Butterworths, 1997, p.31

This regulation applies to both private land titles, such as land ownership, land right of exploitation, land right of building, land right of use, and state land which is used by government institutions, regional governments, other bodies to implement the right to authorize of the state in the form of right of controlling, as well as land in which has right of possession upon state land (Chapter II). A piece of land will be declared vacant through a certain kind of procedure, which is stated in Chapter IV of this decree. A part of a parcel of land can be stated as a vacant land, and only that part of land then becomes the state land (Chapter III, s 5 (2), s 6(2),7 (2), 8(2). B. Legal reasoning A principle of the Indonesian land right states that all land rights have social functions, which means that land must not be used merely for the benefit of the owner, but should be used in such way as to benefit the people, the state, as well as the owner (Article 6 of Basic Agrarian Law). The consequence is that the owner as well as the person with secondary rights should ensure that the land is well taken care of and prevent the land from being damaged and increase its fertility (Article 15 of BAL). Otherwise the state can revoke the land rights (Article 27, 34, 40 of BAL). In fact, there are still many parcels of land in many places that are left vacant, which will obstruct the sustainable development of the country, as a result of the densely populated areas of land and the increasing need of land to develop the country. In rural areas, the phenomenon obstructs crop production, whereas in urban areas, it stimulates slum areas, which arouses social problems and reduces land use efficiency, and is against the principle of social function of land.

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As the causes of vacant land are varied, the regulation states that: If it is caused by the owners economic pressure, the land cannot be stated as a vacant land, and the owner will receive a guidance to use the land effectively; The declaration of land as vacant must be written by the Land Minister or on behalf of the Minister. The landowner must be given a wide opportunity to use the land effectively in order for his/her land not to be declared as a vacant land. C. Procedure of ordering land, which is left vacant (Chapter IV) Based on Ministerial or head of Regional Land Agencys order, as well as a community report, Regional Land Agency identifies land, which is left vacant. Land identification consists of subject, object, and conditions of a land, which is left vacant. In the process of identification, the owner must give honest information about the land. The identification should be based on reasonable period of time, which is stated by the Minister of Land. The Minister of Land forms an evaluation team that consists of representatives of institutions related to the land use and headed by Head of Regional Land Agency to decide whether a land can be stated as a vacant land. This team then submits the report to Head of Provincial Land Agency, followed by necessary treatments over the land. If a vacant land is a result of economic pressure of the landowner, the owner will receive a guidance to use the land effectively proposed by the Head of the Regional Land Agency. A technical institution related to the land use under regencys government coordination undertakes the guidance

If vacant land is a result of the landowners negligence to use the land properly, the Head of the Regional Land Agency proposes to the Head of Provincial Land Agency to give a notice to the landowner to use his/her land properly within 12 months. Otherwise the Head of Provincial Land Agency will issue the second notice to the landowner for another 12 months. If the landowner still ignores the second notice, the third notice will be issued. If within another12 months after receiving the third notice the landowner still do not maintain the land properly, the head of Provincial Land Agency then will report it to the Minister of Land and propose it to be a vacant land. Before issuing a letter of decision, the Minister gives a chance to the landowner to alienate the land within three months through auction. Provision of the 2nd and 3rd procedure cannot be applied over lands in dispute. D. Managing a vacant land Land, which is already stated to be vacant land, automatically becomes state land, and the owner then receives compensation stated by the Minister. The owner, then, has no rights to use the land, and must transfer the land to another party chosen by the Minister. The compensation is based on the purchasing price. Any physical utilities or building on the land are considered. The compensation is the responsibility of the second owner. (Chapter V)

IV. Analyses The Concept In dealing with how to use land in an effective way Australia uses adverse possession, which gives right to intruders to possess someone else land without the

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consent of the true owner. This system looks over the adverse possessor in dealing with the limitation period stated by statutes. While Indonesia promulgated the government decree No.36 of 1998 to encourage the true owner to use his/land in an effective way, and to be consistent with the nature and the objective of the land right as well as the regional land use planning. This system looks over the true owners period of time stated by the Minister of Land. The time period has been started when the true owner has left his/her land vacant or has not take care of it properly, which can be known through land identification process done by Regional Land Agency based on Ministerial or head of Regional Land Agencys order, as well as a community report. In Australia, adverse possession is considered to be legal, and merely dealing with civil law matters. It gives an adverse possessor right to possess, to exclude the whole world until another person demonstrates the stronger right, and to alienate the possessors right to another party before the limitation period has completed. By contrast, adverse possession is considered to be an illegal deed in Indonesia and remained as illegal occupation. Actually, adverse possession in Indonesia has existed for along time even before the Second World War, especially in regard to large plantation, which was causing conflicts endangering the safety and public order. To overcome the problem a civil court action did not prove sufficient. Therefore, some regulations16 also add the possibility to apply criminal punishment to the wrong doer.17 Although according to Government Regulation No. 51 of 1960 the adverse possessors problem does not always come to criminal justice, it can be dealt with another ways, such as relocating the adverse possessor or vacating the land by force. So,
16 Ordinance of June 8, 1948 concerning illegal occupation of lands, S.G.110/1948; Emergency Law No.1 of Oct. 1, 1956; Government Regulation No. 51 of 1960. 17 Budi Harsono, Sudargo Gautama, Agrarian Law, Survey of Indonesian Economic Law, Bandung,: Padjadjaran University Law School, 1972, p. 17

even though adverse possession in Indonesia is considered to be illegal(has no legal basis), the solution should begin with negotiation between the parties. In dealing with vacating land by force, the adverse possessor has no right to claim compensation for movement, but property on the surface of land. If there is a compensation for movement it is merely the regional governments policy.18 Indonesian land law also uses the principle that possession is the root of land title and considered to be an interest of land. Therefore in Indonesian context, this possession here is the first possession of a free land (land on which has no title, or no one owns it), or right of possession given by the state or customary community. For instance, in distributing land titles, the government will give priority to the local community or some one who possess the land. In granting land rights the government also consider the period of time used by the first possessor in possessing and using the land in a good faith. So this is different from possession in the way of adverse possession. Adverse possession in Australia often occurs upon lands between boundaries or by mistake. In dealing with boundaries, within the limitation period, the land remains under the adverse possessors right. If before accomplishing period the true owner could prove the right boundaries, the excessive land than should be given to the true owner. Therefore in some cases, adverse possessors prefer to give the excessive land and deal with what it is stated in the land certificate over the limitation period. In dealing with by mistake, for instance, Mr. X bought a land of block no.1, but by mistake without consent he possessed a land of block no.2. If he has in possession of the land completing the limitation period, he automatically became the owner block
18 Boedi Harsono, Hukum Agraria Indonesia, Sejarah Pembentukan UUPA, Isi dan Pelaksanaannya, (Indonesian Agrarian Law, History of Issuing Agrarian Decree, Its Content and Implementation), Yogyakarta : Djambatan , 2003, p.112-117

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no.2. Otherwise, the true owner has right to claim his/her land before the limitation period has completed. Implementation of the regulations Unlike in Indonesia, adverse possession in Australia is not considered to be a big problem because of many reasons, such as: the land is huge whereas the population is small; the case of adverse possession does not often take place as a result of community welfare. Therefore, to date, there is not any specific regulation that rules how to use land effectively and land cases are not crucial. So people can still pursue land for living without taking adverse possession, esp. dealing with plantation. Located in the smallest continent, Australia is the worlds sixth largest country at about 7.7 million square kilometers. Its population is approximately 19 million. The small population in proportion to the size of the country results in a population density of 2 persons per square kilometer. Australians have high rate of home ownership. By contrast, Indonesias land is 1.8 square kilometers with 235 million people, known as the fourth most populous country in the world. This condition forces the government to rule the land effectively. In fact the implementation of the decree in dealing with the process of deciding a vacant land, the government decree no.36/1998 seems very complicated and tends to be ineffective. The limitation period is not definitely mentioned. Notices, guidance, remedies to landowners as well as treatment to the land give opportunities for the landowners to neglect the warnings. That is the reason that, to date, there is no jurisprudence related to the vacant land decision. Hence, in using land effectively, people cannot use the vacant land automatically but he/she should propose a license of possessing land to the government after the land has been stated to be a vacant land and

considered to be a state land, and gives remedy to the previous owner. A positive aspect of this regulation is that land owner has been given a very strong land title although Indonesia does not use the principle of indefeasibility of title as a result of its land title registration system which uses negative publication system- though not purely negative one. A negative aspect of this regulation is that it has a tendency to secure capitalist people, as those people own many of abandoned land, and gives little opportunity to ordinary people to use the land. As a result of semi-negative publication system, land title certificate becomes a means of strong evidence, not absolute one, toward physical and legal data of a peace of land. It means that as long as there is no other evidence prevail the data, data in the certificate remains true (article 19 (2c), 23,32, 38 of BAL). So, a certificate landholder still always has a possibility to become a defendant from a plaintiff. To give legal security to the good-faith owner, article 32 (2) PP 24/1997(government decree) about Land Registration states that other party will lose the opportunity to claim a land over a good faith owner who holds the land certificate and has acted actual possession of the land for at least 5 years, if within this 5 years commencing the certificate he/she does not send a notice of objection to both the owner and the head of the Regional Land Agency. Article 32(2) PP 24/1997 has two objectives: To maintain negative publication system; To give legal security as well as legal certainty to a good faith certificate landholder who has acted in active possession of land. A long time ago, under the Dutch Land Law, the weakness of negative publication system was overcome by acquisitieve verjaring or adverse possession.

17

Because the adverse possession brought negative impact for the community, which was causing conflicts endangering the safety and public order, then, Indonesia does not base the law on western law any longer, but prefers to use adat law, which uses the institution of rechtsverwerking ( see: Supreme Court Decisions dated 10-1-1957

No.210/K/Sip/1955; 24-9-1958 No.329/K/Sip/1957; 26-11-1958 No.361/K/Sip/1958; 73-1959 No.70/K/Sip/1959. It means that if a landowner leaves his/her land vacant in certain period of time, and then someone else possesses it in a good faith, this brings consequence to the landowner to lose his/her right to claim over the land. 19 This principle is also mentioned in BAL article 27, 34, 40, that land rights can be revoked because the land is being abandoned.20 This principle also mentions that someone cannot

automatically possess the abandoned land, but he/she should get a permission from the adat community, where the land is located, represented by the adat functionaries or kepala adat( Adats Chief). This principle also has weaknesses, that is, because it is based on adat law, which is usually unwritten, the limitation period of time is also uncertain depending on different kinds of adat law used by different regions. Now, in many cases, the certificate of land title becomes more administration evidence rather than factual evidence, and the implementation of the government decree no.36/1998 seems ineffective. So, the main differences between acquisitive verjaring or adverse possession and rechtsverwerking are : 1) the first principle looks over the next possessors limitation period of time in possessing the land, while the second one looks over the landowner limitation period in abandoning the land; 2) the first principle does not need a
19 Boedi Harsono, Hukum Agraria Indonesia, Sejarah Pembentukan UUPA, Isi Dan Pelaksanaannya (Indonesian Agrarian Law, History of Issuing Agrarian Decree, Its Content and Implementation), Jakarta : Djambatan, 2003, p.67 20 Explanation of article 32(2) PP 24/1997

statement from the government or local chief community for a parcel of land to be a vacant land, while the other one does; 3) the first principle does not need permission from a third party for the possessor to possess a vacant land, while the other one does; 4) the first principle needs a possessor to revoke the landowner right to claim his/her vacant land, while the other one does not. So, in Australia, the implementation of adverse possession acts seems simpler as the adverse possessor can automatically possess a vacant land without any influence of the government. Actually this procedure prevails the principle of indefeasibility of title used by Australian law as a result of land title registration by Torrent System. If the Australian government would like to secure landowners with a good faith, and to keep the indefeasibility of title consistency, it should ask more requirements to possess someone else land, for example the land has been abandoned for a certain period of time, the adverse possessor does not know the true owner, etc. Otherwise, bad experience like Indonesia will take place in Australia.

V. Conclusion In eliminating the growth of vacant land, both Indonesian and Australian Land Law give opportunities to other people to use the vacant land effectively, and give sanction to the landowner who abandoned his/her land in the form of revoking the right to claim over his/her vacant land, within the termination of a period of time. Australian Land Law uses the concept of adverse possession, which is stated in many statutes that vary amongst states. While Indonesia uses the Government Decree No.36 of 1998 about ordering and reusing abandoned land throughout the country, which is based on Article 5(2) UUD 1945(Indonesian

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Constitution) jis UU No.5/1960 (BAL); UU No.5/1974 (Act of Regional Government); UU No.24/1992 (Act of Landscape Management); PP No.6/1988 (Government Decree of Regional Coordination on Vertical Institution Activities); PP No.24/1997 (Government Decree of Land Registration); PP No.40/1996 (Gov. Decree of Land Rights). The differences are: In revoking the owners right to claim his/her vacant land, the principle of adverse possession need another person(s) to possess the land in a certain period of time, whereas the Government Decree No.36 of 1998 does not; The principle of adverse possession looks over the adverse possessors limitation period of time in possessing the land, whereas the Government Decree No.36 of 1998 looks over the landowner limitation period in abandoning the land; The first principle does not need a statement from the government for a parcel of land to be a vacant land, while the other one does; The first principle does not need permission from a third party (government or chief of the local community) for the possessor to possess a vacant land, while the other one does; The procedure under the Government Decree No.36/1998 seems more complicated than that under adverse possession; Government Decree No.36/1998 is a special regulation merely in dealing with vacant land, whereas in Australia the principle of adverse possession also deals with boundaries and possession by mistake. Although in some cases it also deals with vacant land, there is no specific regulation ruling vacant land and how to treat it effectively.

These differences are caused by many factors such as:

The land law policy used by the two countries. In Indonesia, Governments role in land law matters is much more dominant rather than in Australia The geography and demography between the two countries are very different Land disputes in Indonesia are more crucial rather than in Australia There is more land in communal possession in Indonesia rather than in Australia Indonesia used to use the principle of adverse possession for a long time ago under the Dutch Land Law system. Because it was considered to be ineffective to be used, Indonesia does not use it anymore. On the other hand, Australia still uses it.

VI. Suggestion: The Government Decree No.36/1998 has to be reviewed in order to make it more practical, and effective, give more legal certainty, and give more justice to the community, especially the local community in which the land is located. It is also important to promulgate a regulation concerning technical mechanism of the decree. It is better for Australian government to give more legal security to landowner by giving more legal requirements to someone to possess someone else land, because in the long run the number of population becomes bigger and that makes land cases becomes more complicated.

BIBLIOGRAPHY

Books 21

Boedi Harsono, Hukum Agraria Indonesia, Sejarah Pembentukan UUPA, Isi Dan Pelaksanaannya (Indonesian Agrarian Law, History of Issuing Agrarian Decree, Its Content and Implementation), Jakarta : Djambatan, 2003. Bradbrook, Adrian, et all, Australian Real Property Law, 3rd edition, Riverwood NSW : Ligare, 2002. Butt, Peter, Land Law, 4th edition , Erskineville, NSW : Lawbook Co, 2001. Gautama, Sudargo and Harsono Budi, Agrarian Law, Survey of Indonesian Economic Law, Bandung : Padjadjaran University Law School, 1972. Neave, M A, at all, Property Law, Cases and Materials, 6th edition, Australia : Butterwords, 1999. Megarry, Sir Robert and Wade H.W.R, The Law of Real Property, 6th edition, London : Sweet & Maxwell Limited, 2000. Tooher, Joycey G, et all, Introduction to Property Law, 3rd edition, Australia : Butterworths, 1997. Journal Jacson, The Legal Effects of the Passing of Time , 7 MULR, 1970. Case Sir Thomas Plumer MR in Marquis Chomondeley v Lord Clinton ( 1820) 2 Jac & W 1 at 139140; 37 ER 527 at 577.