Keabsahan Jual Beli Hak Atas Tanah Kepada Warga Negara Asing (WNA)

Abstract

This study analyses the validity of the practice of buying and selling land rights by foreign nationals in Indonesia from the perspective of national agrarian law. The 1960 Agrarian Law explicitly restricts ownership of Freehold Rights to Indonesian citizens, whilst FNs are only permitted to utilise land through the Right of Use scheme, the Right to Build scheme via specific legal entities such as PT. PMA, or inheritance subject to specific conditions. However, the prevalence of nominee agreements, the use of fictitious debt agreements, and claims of land ownershipby FNs, particularly in tourist areas such as Bali, indicate the existence of loopholes that are frequently exploited to circumvent legal provisions. This research employs an empirical legal approach through field observations, in-depth interviews with BPN officials and Notaries/PPATs, Focus Group Discussions (FGDs), and documentary analysis of regulations and court rulings. The research findings indicate that nominee agreements contravene the objective requirements of a contract under the Civil Code and constitute a form of legal circumvention that renders such transactions null and void under Article 26 (2) of the Land Administration Law. Furthermore, issues persist regarding oversight, the implementation of zoning regulations, and the public’s limited understanding
of the legal restrictions on land ownership by foreign nationals. This research underscores the need to strengthen regulation and law enforcement regarding land ownership practices involving foreign nationals, including restrictions on the use of nominee schemes and improved coordination between the National Land Agency (BPN), the Public Notary (PPAT), and law enforcement agencies. The research recommendations are aimed at strengthening legal certainty, preventing the misuse of agrarian transactions, and protecting the principle that land ownership is for the greatest possible prosperity of the people, as mandated by the 1945 Constitution.