Have you ever imagined buying land with good intentions, only to later discover that the original owner appears and reclaims it? This is the essence of frequent land ownership disputes, where the Original Owner confronts the Bona Fide Purchaser. This situation is like a battle between two important legal rules: the rule protecting the initial owner, and the rule protecting the honest buyer.
Simply put, the rule protecting the initial owner states: “No one can give what they do not have.” This means that if someone sells land that isn’t truly theirs, the buyer won’t be able to become the full legal owner. On the other hand, there’s the bona fide rule that protects buyers who have acted honestly and were unaware of any issues with the land they purchased.
This article will further explain this dispute, how judges currently view this issue, and what needs to be considered in such cases.
The Clash of Legal Principles
The Rule Protecting the Original Owner (Nemo Plus Iuris & Nemo Dat Rule)
Imagine this: Someone steals your bicycle and sells it to someone else. Even if that person bought it with money and didn’t know it was stolen, the bicycle is still yours. That’s roughly the principle of Nemo Plus Iuris (no one can transfer more rights than they have) and Nemo Dat Quad Non Habet (no one can give what they do not have). These two principles are crucial for protecting a person’s legitimate property rights, ensuring that goods cannot simply change hands without the owner’s permission.
The Rule of Good Faith (Bona Fides)
Conversely, there’s the rule of good faith. This is a principle that protects individuals who honestly purchase something, without knowing there are issues or defects with the item. In the case of land, a Bona Fide Purchaser is someone who buys land believing completely that the seller is the legitimate owner and has the right to sell it. This buyer typically also conducts the necessary checks to ensure everything is in order. This rule exists to maintain public trust in the land registration system and provide legal certainty.
Shifting Judicial Perspectives
In the past, judges in Indonesia tended to side more with the Bona Fide Purchaser. The reason was to encourage public confidence in property purchases and facilitate smooth transactions. However, recently, there has been a shift in judicial perspective. They are now more neutral. This means judges strive to equally weigh the rights of the Original Owner and the protection of the Bona Fide Purchaser. This change indicates that the courts aim to achieve greater justice for both parties.
Understanding Good Faith (and Bad Faith)
How do we know if someone is acting in good faith or not? Since “good faith” is abstract (it’s in one’s heart), the best way to understand it is by looking at its opposite: bad faith.
Courts often make decisions based on previous cases (jurisprudence). From these decisions, we can see characteristics of actions considered “not in good faith.” For example, if someone buys land at an unreasonably low price, or refuses to check the land’s status despite suspicions, they might be considered to be acting in bad faith. By understanding what “bad faith” is, we can then understand the boundaries of “good faith.”
What to Do in Case of a Dispute?
The Supreme Court (MA) of the Republic of Indonesia has issued several guidelines:
- Bona Fide Purchaser Will Be Protected: If someone buys land in good faith, even if the seller turns out not to have the right to sell it, the buyer will still be protected.
- Original Owner Can Only Claim Compensation: If the Original Owner wants their land back, the MA suggests that they should not claim the land directly from the Bona Fide Purchaser, but rather claim compensation from the seller who did not have the right to sell.
- Criteria for a Bona Fide Purchaser: The MA also explains the criteria for a Bona Fide Purchaser, which include:
- Purchasing the land according to legal procedures (through auction, before a Land Deed Official/PPAT, or according to valid customary law).
- Conducting a thorough check of the land to be purchased (ensuring the seller is the legitimate owner, the land is not confiscated or mortgaged, and checking the land history with the National Land Agency/BPN).
Land disputes between Original Owners and Bona Fide Purchasers are complex legal issues. They involve the protection of the original owner’s rights and certainty for honest buyers. The shift in judicial perspective towards a more neutral stance is a positive development. It shows that our legal system continues to adapt to seek better balance and justice for all parties.
By: Dr. Dr. Yonatan, SH, S.Kom, SE, MAF, M.Kn
