AGUS SEKARMADJI (2010) PRINSIP-PRINSIP HUKUM PEROLEHAN HAK ATAS TANAH DALAM RANGKA PEMBANGUNAN PERUMAHAN. Disertasi thesis, UNIVERSITAS AIRLANGGA.

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Abstract

In the context of housing development, an acquisition of land rights is required. Within the regulations concerning the acquisition of land rights, it is found an inconsistency in the use of legal concepts. The respected inconsistency refers to concept of pembebasan tanah, penyediaan tanah, perolehan tanah, pengadaan tanah and pencabutan hak atas tanah. Referring to such inconsistency, therefore, it is urgent to perform diligent research on which legal concept is appropriate and correct to be employed. The research is necessary to bring the legal certainty. Regulations concerning the acquisition of land rights must clear, consistent in employing concepts, and base on legal principles which applied and obeyed universally. Regarding to the result of this research, it is shown there are three principles on acquisition of land rights which applied and obeyed universally, namely (1) the principle of respect to the land rights, (2) the principle of legal certainty, (3) the principle of public participation in the acquisition of land rights. Furthermore, among the various legal concepts on the acquisition of land rights above mentioned, the most appropriate concept employed is perolehan hak atas tanah. The application of such concept is based on the relationship between the state and the land. On the basis of such relationship, there is land which identified as “land state” (land owned by state) and land which identified as “land with title right”.Legal concept of perolehan hak atas tanah can be applied both to land state and land with title right. Upon land state, the acquisition can be processed firstly through waving rights and continued by filing the proposal of acquiring the rights. Upon the land with title right, the acquisition can be pursued by transferring the rights by means of purchase or exchange transaction. Legal principles applied in housing development and construction is (1) the principle of environmental oriented, (2) the principle of compliance to side-plan, and (3) the principle of community participation. Those principles already implant within the regulations in housing sector. Meanwhile, the legal principle on acquisition of land rights which are not yet internalized within the regulations in housing sector is the principle of legal certainty.

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