Friday, December 11, 2015

Understanding Mortgage Papers, Law, Execution, Case, Characteristics and Nature

Understanding Mortgage Papers, Law, Execution, Case, Characteristics and Nature - Understanding security rights: Article 33 paragraph (3) of the Constitution of 1945 affirms that the earth, water, and natural resources that is in the earth is used for the greatest prosperity of the people of Indonesia.

Mortgage Papers - Implementation of Article 33 (3) Act of 1945 with respect to the land stipulated in Law No. 5 of 1960 on Agrarian Basic Regulation. This Act repeal Book II of the Civil Code in the case of earth, water, and natural resources that is in it, except for the provisions governing mortgages. However, there are several aspects that need to be considered, namely:
With increasing national development which focuses on the economy, required the provision of substantial funds, thus requiring rights institutions guarantee a strong and able to provide legal certainty for the parties concerned, which could encourage increased participation of the people prosperous, equitable and prosperous based Pancasila and the 1945 Constitution;
Since the enactment of Law No. 5 of 1960 on the Basic Regulation of Agrarian up to this time, the full provisions of the Mortgage as an institution that can be charged to guarantee the rights to land following or not following the objects related to the land, has not been formed;
The provisions concerning mortgages as set out in Book II of the Civil Code Indonesia along the ground, and the provision of credietverband in staatsblad 1908-542 as amended by staatsblad 1937-190, which is based on Article 57 of Law No. 5 of 1960 on the Basic Regulation of Agrarian still be temporary until the establishment of the Law on Mortgage, deemed no longer compatible with the needs of credit, in connection with the development of the economic governance of Indonesia;
Given the developments that have and will occur in the regulation and administration of land rights as well as to meet the needs of the community at large in addition to property, the right to cultivate, and building rights that have been designated as the object Encumbrance by Law No. 5 of 1960 on the Basic Regulation of Agrarian, certain land use rights which shall be registered and transferable by their nature, should also be possible for the encumbered Mortgage. (Rachmadi Usman, 1999, the Articles On Mortgage of Land, Djambatan, Jakarta, pp. 41-42)

Dealing with such matters with the things mentioned above, the government of the Republic of Indonesia deems it necessary to enact legislation regulating the Mortgage on land and objects related to the land, as stipulated in Law No. 5 of 1960 on the Basic Regulation of Agrarian Principles, as well as realizing the unification of national land laws. On April 9, 1996, with the approval of Parliament, the President of the Republic of Indonesia has enacted Law No. 4 of 1996 on Mortgage of Land Along Objects Relating to Land. This Act promulgated in State Gazette No. 3632. (Subekti, 1996, guarantees for Lending, including Mortgage, Legal Indonesia, Citra Aditya Bakti, Bandung, p. 39)

Act No. 4 of 1996 on Mortgage of Land Along Objects Relating to Land, which is formally under Article 30 of the Act, hereinafter referred Act Mortgage (UUHT), are set to meet the provisions of Article 51 of Law No. 5 of 1960 on Basic Agrarian, otherwise known as the Basic Agrarian Law (BAL) Article 51 states:

"Encumbrance which can be charged to property, the right to cultivate and building rights mentioned in Article 25, 33, and 39 is set by law."

With the enactment of UUHT, the provisions on mortgage set out in Book II of the Civil Code in the case of loading Encumbrance on land rights as well as objects related to the land, as well as provisions on credietverband arranged in staatsblad 1908-542 and 1937-190 stated staatsblad expired.

According to Article 1 paragraph 1 UUHT, Mortgage of Land Along Objects Relating to Land, hereinafter referred to as Encumbrance is:

"The right of a guarantee imposed on land rights as defined in the BAL, following or not following other objects which are an integral part of the land, for the repayment of certain debt obligations, which gives the position preferred to specific lender against other creditors."

From the above definition can be concluded that the Mortgage is a strong guarantee agency because Encumbrance give preferred status to certain creditors to other creditors. (Rachmadi Usman, op.cit, p. 70)

The characteristics and properties of Encumbrance

In General Explanation Mortgage Law No. 4 1996 stated that as an institution security rights over the land are strong, Encumbrance should contain characteristics:

a. Droit de preferent, means giving the preferred position or precede the holder (Article 1 paragraph 1 and Article 20 paragraph 1).
In this case the holder of Encumbrance as a creditor obtained the right of precedence over other creditors to obtain payment from the sale of receivables (liquefaction) object that is tied to the credit guarantees the Mortgage. Position creditors have the right to precedence over other creditors (preferred creditor) will be very beneficial to the parties concerned in obtaining repayment (repayment) of loans given money to borrowers who break their promises (defaults).

b. Droit de suite, meaning that always follow the collateral in the hands of anyone object is located (Article 7).
In Article 7 UUHT mentioned that follow the object security rights remain in the hands of anyone object is located. This trait is one specific guarantees for the benefit of holders of Mortgage. Although the object of the Mortgage has changed hands and became owned by other parties, creditors can still use their right through execution, if the debtor default.

c. Fulfilling the principle of specialties and publicity so as to bind third parties and provide legal certainty to the parties concerned.
Under these conditions, the validity of the imposition of Encumbrance required shall be clearly stated where and in what amounts receivable are secured as well as objects which were used as collateral (terms specialties), and must be registered in the Land Office that is open to the public (terms of publicity).

d. Easy and sure execution of execution
 One characteristic of a strong Encumbrance is easy and certainly in the implementation of the execution if the debtor default. Although in general provisions regarding the execution has been set in the law of civil procedure, it is necessary to enter the particulars of execution Encumbrance in this Law, the governing body parate executie referred to in Article 224 HIR and Article 258 Civil Code for Regions outside Java and Madura. (M. Bahsan, op.cit, hal.23-25)

Encumbrance properties can not be divided unless otherwise agreed in the Deed Granting Mortgage (APHT), as defined in Article 2 UUHT. By their very nature can not be divided, the Mortgage will burden the whole object security rights. This implies that if debt (credit) that is secured by the Mortgage repayment newly settled partially, then Encumbrance still weighing on the entire object Encumbrance. (Subekti, op.cit, p. 41)

Clause "unless otherwise agreed in APHT" in Article 2 UUHT, imprinted with a view to accommodate the needs of the development of the banking sector, in particular lending activities. By using such clauses, nature can not be divided from Encumbrance can criss, namely to foretell that if Encumbrance imposed on some land rights, which guaranteed the loan repayment can be made by installments. The installment is equal to the value of their land rights, which is part of the object Encumbrance, which will be exempt from the Mortgage. Thus after an installment is paid, Encumbrance will only burden the rest of the object security rights to secure the rest of the unpaid (Explanation of Article 2 paragraph (1) in conjunction with paragraph (2) UUHT).

Other properties of the Mortgage is an accecoir security rights of the principal agreement, meaning that the agreement Encumbrance is not a stand-alone agreement, but its existence is due to the existence of another treaty called the principal agreement. Principal agreement for the agreement is an agreement Mortgage loans receivable secured debt that raises it. (Remi Syahdeini, 1996, Encumbrance: Principles, Basic Provisions and problems faced by Parties Banking, a Study Regarding UUHT, Airlangga University Press, Surabaya, p. 20) This is consistent with provisions in item 8 General Explanation UUHT which explains that because Encumbrance by its nature is a bond or accecoir at a certain receivables, which is based on a treaty or other agreement payable, the birth and existence is determined by the receivables are guaranteed repayment.

Objects Encumbrance

Against objects (land) that will be the object of Encumbrance, it must meet the following requirements.

Can be valued in money, because the secured debt in the form of money;
Including the rights that are listed in the general list, because it must meet the requirements of publicity;
Have the transferable nature, because if the debtor default, objects are used as collateral will be sold in public;
Needs to be designated by the Act as a right that can be loaded with Mortgage. (Boedi Harsono, 1999, the Indonesian Agrarian Law, History of the Establishment of the BAL, Content and Implementation, Djambatan, Jakarta, p. 40)

In this regard, Article 4 UUHT has defined land rights can be made the object of Encumbrance, which includes:
Hak, Broking, and leasehold referred to in the BAL (Article 4 paragraph (1) UUHT).
Right to Use Land State according to the applicable provisions shall be registered and transferable by their nature. Land use rights to the state, which, although required to be registered, but due to its nature can not be transferred, then the right of use is not included in the object Mortgage.
The right to land and buildings (both of which are above and below ground), plants and works that already exist or will exist, whice is a unity with the land, and which is the property holders of land rights. Imposition of Encumbrance on buildings, plants and the results of the work, and which is the property holders of land rights. Imposition of Encumbrance on buildings, plants and the work of the above should be stated explicitly in the APHT (Article 4 paragraph (4) UUHT). If buildings, plants, and works as mentioned above is not owned by the holder of land rights, the imposition of Encumbrance over these objects is simply done by signing as well (together) at APHT concerned by the owner or authorized by the owners of the objects is to sign as well (together) APHT an authentic deed. What is meant here is the authentic document Power of Attorney Imposing Mortgage (SKMHT) on the objects on the land burdened Mortgage (Article 4 paragraph (5) UUHT). (Subekti, op.cit, p. 45-46)

Mortgage object becomes wider in relation to Article 12 of Law No. 16 of 1985 on the Flats, as stated in Article 27 UUHT, which states that the provisions Encumbrance also apply to the imposition of security rights over the flats. Security rights over flats include:
Flats standing on the ground Properties, Broking, leasehold, Right to Use granted by the state; and
The ownership of the apartment units that the building stands on land rights mentioned above.

 Subject Encumbrance

Encumbrance subject in question in this case is the giver and Mortgage holders.

a. Giver Encumbrance
Mortgage giver is the person or legal entity that has the authority to take legal actions against the objects Mortgage. The authority must exist at the time giver Mortgage Mortgage registration (Article 8 UUHT).

UUHT of common explanation among others explained that at the time of manufacture and APHT SKMHT, must already exist confidence in the Notary or PPAT concerned that the giver Mortgage has the authority to take legal actions against the objects Mortgage charged. Although the certainty of its new authority is required at the time of granting the Mortgage registered.

b. Mortgage holders
Mortgage holder is the person or legal entity that serves as the indebted party (Article 9 UUHT). Because the Mortgage as an institution the right to land does not contain kewenagan to master the physical and the use of land which is used as the giver Encumbrance except in the circumstances mentioned in Article 11 (2) c, then the holder of security rights can be done by Indonesian citizens or Agency Indonesian law or foreign citizen or foreign legal entity.

Imposition process Encumbrance

In general, lending procedures to guarantee that the proposed candidate Mortgage debtors to creditors, which in this case is the bank that is through the following stages:

Prospective borrowers apply for credit and submit the necessary paperwork and have been determined by the bank in the credit application;
Prospective borrowers fill out a credit application form that has been provided by the bank. Once the form is filled out completely and correctly, the form is then handed back to the bank;
The bank then do the analysis and evaluation of credit on the basis of data contained in the credit application form. The purpose of this analysis is to ensure the correctness of data and information provided in the loan application. In addition, the results of the analysis and evaluation of credit is used as the basis for consideration of the acceptance or rejection of the loan application .;
If the results of the analysis and evaluation of prospective loan borrowers declared eligible by the bank to obtain credit, then later negotiation between the two parties, namely the banks and borrowers. This credit Negotiations among others, the maximum credit to be granted, credit purposes, the credit period, administrative costs, penalties, interest and so forth;
If there was an agreement between the two sides signing the credit agreement in the form of acknowledgment of debt with a binding guarantee, in this case a guarantee of Encumbrance, before PPAT and bank officials;
After binding assurance Mortgage and PPAT has provided information that the prospective borrower has met the stated requirements, then bank loans to prospective borrowers realize. (Thomas Suyanto, 1993, Basics Credit Law Third Edition, Gramedia Pustaka Utama, Jakarta, p. 32)

Mortgage binding assurances made in the credit agreement in question here is through the process of loading Encumbrance as specified in UUHT namely through two stages as follows:
Stage granting Mortgage conducted in the presence of PPAT;
Stage security rights registration is done at the District Land Office or a local town, which is when the birth of the Mortgage.

According to Article 1 point 4 UUHT mentioned that PPAT is a public official who is authorized to make the deed of transfer of land rights, land rights certificates loading, and loading empowering deed Mortgage. In general explanation of the number 7 also explained that in the position as stated in Article 1 number 4, then the deed made by PPAT an authentic deed.

a. Giving Phase Encumbrance
Accecoir according to the nature of Encumbrance, then loading Encumbrance preceded by agreements that give rise to legal relations which guaranteed repayment accounts payable, which is the principal agreement. It is mentioned in Article 10 paragraph (1) UUHT which states that the granting of Mortgage preceded by a promise to provide as collateral Mortgage repayment of certain debt, which is poured in and an integral part of a receivable debt agreements concerned.

Under the terms of Article 10 paragraph (2) UUHT Mortgage mandatory provision was attended by the grantor Mortgage, Mortgage holder and two witnesses, done by making APHT made by PPAT according to the rules applicable legislation. APHT made by PPAT is an authentic document (General Explanation UUHT figure 7).

Encumbrance of the object in the form of land rights derived from the conversion of the old rights that have been qualified to be registered but registration is not carried out, meaning that the land rights have not been certified, giving Encumbrance performed in conjunction with the application for registration of land rights are concerned. Old rights is meant here is that ownership rights over customary land which has been there but the administrative process in the conversion has not been completed in accordance with the legislation in force. (M. Bahsan, Op. Cit, p. 31)

Encumbrance of objects that consist of more than one parcel of land and some of which are located outside the area of work, for the manufacture of the relevant provision of APHT PPAT require permission from the Head Office of the National Land Agency (BPN) Province. Provided that the plots should be located within the working area of the Land Office District / Municipality (Article 3 (2) of the Regulation of the Minister of Agrarian No. 15 of 1961 and Article 3 of the decision of the Director General of Agrarian No. SK. 67 / DDA / 1968 ). (Bambang Setijoprodjo in the Institute of Legal Studies and Business Law Faculty USU Medan, 1996, Preparation Execution Environment Encumbrance on Banking (Results Seminar), Citra Aditya Bakti, Bandung, pp. 58-59)

Furthermore, the Act establishes the contents of which are obligatory for the validity APHT. Does not include them fully with the things that must be called in APHT. Hence resulting in the deed becomes null and void. In Article 11 paragraph (1) UUHT mentioned things that must be included in APHT, namely:
The name and identity of the giver and the holder Encumbrance;
Domicile of the parties referred to in paragraph 1, and if among them there were domiciled outside Indonesia, for him must also be included a domicile of choice in Indonesia. If a domicile of choice was not included in APHT the place of manufacture APHT PPAT office is regarded as the chosen domicile;
The clear assignment of debt or debts guaranteed repayment by the Mortgage and includes also the name and identity of the debtor concerned;
Value dependents;
A clear description of the object Encumbrance, which includes details of the Certificate of land rights are concerned, or for land that has not been registered at least contains a description of the ownership, location, boundaries, and land area.

In addition to the above, in APHT can be included promises that are optional and has no effect on the validity APHT (Article 11 (2) UUHT). In this case the parties are free to choose to mention or not mention the promises in APHT. In publishing these promises in APHT later in the list at the Land Office, it promises terdebut also have binding force on the third party. (Rachmadi Usman, Op. Cit, p. 110)

The promises mentioned in APHT as mentioned in Article 11 paragraph (2), among others:
Promise that limit the authority of the giver Encumbrance Encumbrance objects to lease and / or determine or change the lease term in advance, except with the prior written consent of the holder of Encumbrance;
Promise that limit the authority of the giver Encumbrance, except with the prior written consent of the holder of Encumbrance;
A promise which authorizes the holder Encumbrance is based on the determination of the Chairman of the District Court whose jurisdiction covers the object Encumbrance earnest if the debtor default;
A promise which authorizes the holder to save the object Encumbrance Encumbrance, if it is necessary for the execution or to prevent becoming abolishment or cancellation of rights that became the object Encumbrance because not met or violation of the provisions of the Act;
The promise that the holder of the first Mortgage has the right to sell on its own power objects Encumbrance if the debtor default;
The promise given by the holder of the first Mortgage Encumbrance that the object will not be cleared from the Mortgage;
Mortgage promise that the holder will not relinquish their rights to object Encumbrance without the prior written consent of the holder of Encumbrance;
Mortgage promise that the holder will acquire all or part of the compensation received for the repayment giver Mortgage Mortgage receivables when the object is released from its rights by giving Encumbrance or deprived the public interest;
Mortgage promise that the holder will acquire all or part of the insurance money received giver Encumbrance for repayment loans, if the object Encumbrance insured;
Mortgage promise that the holder will empty object at execution time Encumbrance Encumbrance;
The promise that the land title certificates that have been spiked with notes of loading Encumbrance remain in the hands of the creditor to the debtor fulfilled all the obligations as it should be.

There is the promise of being forbidden to do, namely the promise mentioned in Article 12 UUHT, which prohibited the granting of authority to the debtor agreed to have an object Encumbrance if the debtor default. The provision is held in order to protect the interests of debtors and other Encumbrance giver, especially if the object value Encumbrance exceed the secured debt. Therefore Mortgage holders are forbidden to necessarily be the owner of the object Encumbrance if borrowers default.

b. Registration Phase Encumbrance
According to Article 13 UUHT, pamberian Mortgage must be registered to the Land Office no later than 7 working days after signing APHT. PPAT obliged to send APHT concerned and other necessary files to the Land Office.

With delivery by means PPAT deed and other necessary files were submitted to the Land Office through its officers or sent by registered mail. PPAT required to use the best way and safely by taking into account the conditions in the area and the existing facilities, and always guided by the goal for the registration of Encumbrance it as soon as possible. Another file is referred to here is the evidence includes letters relating to the object of Encumbrance, and the identity of the parties concerned, including land rights certificates and / or letters of information about the object Encumbrance. PPAT shall implement these provisions because of his position. Sanctions for the infraction will be determined in the legislation governing the position PPAT. (Bambang Setijoprodjo the Institute for Business Law Faculty of Law USU Medan, op.cit, p. 69)

Mortgage registration performed by the Land Office on the basis of data in the APHT and registration documents received from the PPAT, the book made the ground Mortgage. The form and content of the book Mortgage land has been set based on the Regulation of the Minister of Agrarian No. 3, 1997. (J. Satrio, 1998, the Law of Guarantees, Rights Guarantees material, Encumbrance, Book 2, Citra Aditya Bakti, Bandung, p. 143) We make the land book, Encumbrance born and creditors as creditors holder Encumbrance , the preceding position of other creditors.

According to Article 13 paragraph (4) UUHT date of manufacture of the land book Encumbrance is the 7th day after receipt of complete documents required for registration Mortgage. If the 7th day falls on a holiday, the land book concerned given date next business day. Certainty date land book was intended for the manufacture of the land book Encumbrance not drag on so it can be detrimental to the parties concerned and reduce legal certainty.

In terms of land rights as collateral have not been certified before the registration of Mortgage. Time seventh day specified as the date book Encumbrance the ground in such a case, calculated from the completion of registration of land rights are concerned.

To give strength executorial same verdict that already has binding legal force, certificates Encumbrance given irah-irah to put on the cover the words "FOR THE SAKE OF JUSTICE UNDER THE ONE ALMIGHTY GOD" (Article 14 paragraph (2) and (3) UUHT ). With the inclusion of irah-irah on Encumbrance certificate, then it can be used for Parate Execution Institutions referred to in Article 224 and 258 Rbg HIR.

After Encumbrance certificate is completed, then the certificate is submitted to the Mortgage Mortgage holders concerned.

Execution Mortgage

One of the characteristics of the Mortgage is easy and certainly in the future implementation of the execution if the debtor defaults. Execution Mortgage which occurs when the debtor default so that objects Encumbrance then sold through a public auction in the manner specified in the legislation in force and the holder of Mortgage entitled to take all or part of the proceeds to the repayment of its receivables with the right precede rather than creditors other. (Habib Ajie, 2000, the Mortgage As Guarantee Institute of Land, Mandar Maju, Bandung, p. 22) According to Article 20 (1) UUHT, Mortgage executions carried out by:
Mortgage holders first rights to sell the objects Encumbrance on the basis of the authority and appointments referred to in Article 6 UUHT;
Executorial title contained in Encumbrance certificate referred to in Article 14 paragraph (2) UUHT.

UUHT under Article 6 states that if the debtors default, the holder of the first Mortgage has the right to sell the objects Encumbrance on its own power through public auction as well as taking repayment of its receivables from the sale proceeds. Sales Mortgage object can also be carried out under the above agreement as long as the hands of the giver and Mortgage holders.

Procedurally sale of goods is possible can be obtained the highest price that benefits all parties. This was done after the expiration of 1 (one) month from the notified in writing by the grantor or the holder Encumbrance to the parties concerned and published in two (2) newspapers circulating in the area concerned or local media, and no statement object (Article 22 paragraph (2) and (3) UUHT).

Execution Mortgage with executorial title can be done because according to Article 14 paragraph (2) UUHT, Encumbrance certificate as a sign or evidence any Encumbrance containing irah-irah which reads "FOR THE SAKE OF JUSTICE UNDER THE ONE ALMIGHTY GOD". With irah-irah the Encumbrance certificate has the power executorial same court decision that has had permanent legal force.

From the description above can be concluded that execution of the object Mortgage can be done through three (3) ways, namely:

a. Parate Execution (Article 14 paragraph (2) UUHT)
In this case the creditor Mortgage holders must show proof that the debtor broken promises to meet its obligations and to submit the relevant Encumbrance certificate as the basis. The petition was submitted to the Chairman of the Court. Execution then carried out on the basis of the order and with the leadership of the Chairman of the District Court, through a public auction conducted by the Office of State Auction.

Mortgage right

b. Public Auction (Article 6 UUHT)
Implementation of public tender based on Article 6 UUHT is easier than "Parate Execution", because in this auction is not required command Chairman of the Court to conduct the sale of objects Mortgage concerned. This auction can be done immediately because of its strength executorial contained in irah-irah Encumbrance Certificate, so that in this case the holder of Mortgage lenders can directly apply for the sale of objects Mortgage concerned to the Office of State Auction.

c. Sales in Down Hands (Article 6 UUHT)
In certain circumstances, if through a public auction is not expected to generate the highest price, then the agreement of the donor and the holder of Encumbrance, possible executions carried out by way of sale under the hands, if in this way it will be obtained the highest price that benefits all parties. Sales under the hand of the Mortgage object must be done in accordance with the provisions of Regulation No. 14 of 1997 on land registration, which must be done before PPAT makes aktanya and followed by registration at the Land Office.

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