The Power of a Blank Form in the Fully-settled Sale-purchase Deed

Agustining

, Agus Yudha Hernoko

and Ningrum Natasya Sirait

Student of Doctoral Program in Law, Universitas Sumatera Utara, Jl. Abdul Hakim No. 4, Medan, Indonesia

Lecturer of Doctoral Program in Law, University of Airlangga, Jl. Dharmawangsa Dalam Selatan, Surabaya, Indonesia

Lecturer of Doctoral Program in Law, Universitas Sumatera Utara, Jl. Abdul Hakim No. 4, Medan, Indonesia

Keywords: The Power of a Blank Form, Sale-Purchase Deed, Ownership Transfer.

Abstract: A fully-settled sale-purchase deed is usually used for the sale and purchase of land that has been paid in full,

but has not fulfilled the requirements to transfer the ownership title, so that it has created the rights and

obligations for the parties but there has been no transfer of ownership rights. In Indonesia, according to the

Government Regulation number 24 of 1997 concerning Land Registration, the transfer of property rights

occurs after all of the requirements in the Government Regulation number 24 of 1997 concerning Land

Registration are fulfilled. For this purpose, in a fully-settled sale-purchase deed, the power of a blank form is

included for the purpose of signing the sale-purchase deed before the Land Deed Official (PPAT). This study

used a normative legal approach. All fully-settled sale-purchase deeds include the power of a blank form,

which is prohibited according to article 42 paragraph 2 of Notary Law (UUJN). If required in the sale and

purchase agreement, there should be another authorized recipient in addition to the second party who signs

the sale-purchase deed before the PPAT, so there is no blank phrase in the copy of the notary deed.

1 INTRODUCTION

Laws in Indonesia stipulate that a land ownership

transfer must be followed by a process of title transfer

over the land certificate in accordance with the

Government Regulation Number 24 of 1997

concerning Land Registration. Article 37 Paragraph 1

states that a land and a house ownership transfer

through sale and purchase, exchange, grant,

revenueof a company and any other legal ownership

transfer, except the ownership transfer through

auction, can only be registered if proven by a deed

made by anauthorized Land Deed Official (PPAT).

Pursuant to Article 34 Paragraph 1 of the

Government Regulation Number 24 of 1997

concerningLand Registration,every interested party

has the right to know the physical and juridical data

stored in the registration map, land list, letter of

measurement and land book (physical land

datachecking).

The provisions of laws and regulations relating to

the aforementioned Article are contained in the

Government Regulation Number 34 of 2016

concerning Income Tax from Ownership Transfer of

Land and/or Building, and Fully-settled Sale-

Purchase Deedon Land and/or Building together with

Its Amendment stating that the land and/or building

which will be sold or to which a fully-settled sale-

purchase deedhas been made shall pay the Income

Tax. Article 7 of such Government Regulation states

that the Ministry of Agrarian Affairs and Spatial

Planning/Land Agency shall only issue a decree of

granting of rights, recognition of rights, and transfer

of land rights if the proposal is supplemented with a

Tax Payment Slip or other printed means of

administration similar to the Tax Payment Slip as

intended.

Furthermore, Law Number 21 of 1997 that has

been amended by Law Number 20 of 2000

(hereinafter referred to as Law of BPHTB) requires

the buyer to make payment of BPHTB (Land and

Building Title Transfer Tax). According to Article 1

Number 1, BPHTB is a tax imposed on the transfer of

land and/or building title.

In fact, if the parties conduct a fully-settled sale

and purchaseof land and/or buildings, in the context

that one of the administrative requirements has not

been fulfilled, then a notary will make a sale and

purchase deed. This deed is a preliminary agreement

or obligatory agreement which means that when the

agreement has been valid, the agreement is then

binding, but only limited to giving rise to rights and

1702

Agustining, ., Hernoko, A. and Sirait, N.

The Power of a Blank Form in the Fully-settled Sale-purchase Deed.

DOI: 10.5220/0010095817021705

In Proceedings of the International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches (ICOSTEERR 2018) - Research in Industry 4.0, pages

1702-1705

ISBN: 978-989-758-449-7

obligations of the parties and ownership transfer has

not yet occurred (Fuady, 1999). A sale-purchase

deedis a preliminary agreement made before the

execution of the main agreement or principal

agreement (Subekti, 2005). Article 1457 of the Civil

Code states that sale and purchase constitute an

agreement with which one party binds itself to submit

a material and the other party pays the agreed price.

Engagement is a legal relationship that occurs

either because of an agreement or a law (Rusli, 1996).

The legal relationship is a binding legal relationship

that incurslegally enforceable obligations if the

matters agreed in the sale-purchase deed have been

fully implemented (Salim, 2004). Therefore, a non-

binding or unenforceable agreement is not

anengagement (Rusli, 1996). The principal

obligations in such engagement is the transfer of

ownershipof land and building for sale, which will

only be valid after the signing of a Sale Deed before

the Land Deed Officialfollowing by a title transfer at

the local Land Office.

This sale and purchase deed is often made by a

notary if the administrative requirements have not

been fulfilled according to the regulation. It can also

because the object of sale and purchase, the land

and/or buildings, is located outside the Land Deed

Official coverage area (city/regency), but is included

in the notary coverage area (province). Thus, in the

full sale-purchase deed, it should include the full

power of attorney and the power of a blank form.

In its practice, every sale-purchase deed made by

a notary always includes the power of a blank

formwhich, in the notary practice, is referred to as a

blank form which will be filled by the intended

recipient in the future. The blank form is called the

power of a blank form because in the power to which

a sale-purchase deed is attached, the recipient’s

(donee’s) name is emptied which can be filled in by

any name. Such power is intended to anticipate the

absence of the buyer as the donee in the signing of the

sale deed before the Land Deed Official (Danuri,

2011). The use of the power of a blank form in a sale-

purchase deed motivates the writer to conduct a study

with the purpose of finding out the legal basis and

how is the implementation of the power of a blank

form in every fully-settled sale-purchase deed?

2 RESEARCH METHODOLOGY

This research uses a normative legal approach. This

is a doctrinal law research, also called a library

research,whose objects are written regulations or

other legal materials (Waluyo, 1996). This method is

used to analyze Laws and legislations, jurisprudence,

and contracts (Marzuki, 2005). The use ofa normative

legal approachis expected to facilitate the data

analysis to answer legal issues concerning the legal

basis of the power of a blank form in every fully-

settled sale-purchase deed and to find out whether

such power does not break the other legal rules

relating to the title transfer of land and/or buildings.

3 RESULT AND DISCUSSION

A treaty law in Indonesia is regulated in the third book

of the Civil Code, Article 1233-1864, statingthat all

types of agreements set forth in those articles are

named agreements (nominaat). Other agreements

beyond such agreements, including a full sale-

purchase deed,belong to unnamed agreements (in

nominaat), i.e. the agreements arising, growing and

developing in the practice of the community life

(Salim, 2004), along with the development of the

principle of freedom of contracting in accordance

with Article 1338 of the Civil Code. Article 1319 of

the Civil Code states that every named or unnamed

agreement is subject to general provisions of the

treaty law.

The general provisions of an agreement which

serve as the legal requirements are regulated in the

Article 1320 of the Civil Code stating the four legal

conditions for avalid agreement: a. an agreement

between the two parties, b. the capability of the

parties to carry out legal actions, c. the object, and d.

the causal cause (Salim, 2004). A fully-settled sale-

purchasedeedis legal after meeting such four

elements. According to the theory of statements

(uitingstheorie), agreement (toesteming) occurs when

both of the parties have agreed and acceptedan offer

(Salim, 2004). There must be a shared view to achieve

the goal of an agreement. A valid agreement will have

binding power, i.e. the agreement made by the parties

is binding and irrevocable which then acts as a law

for the parties (Hariri, 2011). Even though the parties

are free to enter into an agreement, and are not bound

to a particular form of agreement, the freedom is

limited bythe condition that the agreement a. is not

prohibited by law; b. is not contradictory to the law;

and c. is not contradictory to public order (Hariri,

2011).

The use of power of a blankform in a fully-settled

sale-purchase deedmade by a notary is contradictory

to Article 16 Paragraph 1 point b of Notary Law

(UUJN) stating that it is a general requirement for

every agreement to make a notary deed in the form of

minuta and keep it as part of Notary Protocol. Article

The Power of a Blank Form in the Fully-settled Sale-purchase Deed

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42 Paragraph 2 of the UUJN clearly states that no

empty spaces are allowed in a minuta deed (Budiono,

2015). The fully-settled sale-purchase deed issued in

the form of a copy with the power of a blank form is

prohibited by UUJN.

The power of a blankformis only issued in the

original deed in one copyin accordance with Article

16 Paragraph 5 in conjunction with Article 42 of

UUJN permitting the blank or empty space in an

original deed, i.e. the original deed contains the power

in which the donee’s name is not yet written.

Consequently, the original deed can only be made in

one copy. The power of a blank form is the power of

attorney where the name of the donee (to whom the

power of attorney is addressed) is, at first, emptied. It

is then filled by the donee at the time when the power

of attorney needs to be used.

Although the legal event of fully-settled sale has

been carried out openly and each of the parties has

exercised their rights and obligations in accordance

with the treaty law, the agreement is not yet

completely done before the ownership is transferred

to the buyer. Therefore, for the purposes of title

transfer, the seller has given the power which is

essentially the title transfer of the land and has given

an authority to the donee to control and use the land,

and to perform all legal actions which, according to

the law, can be carried out by the title holder.

Never the less, the process of title transfer of the

land certificate requires several other regulations, one

of which is the Government Regulation Number 24

of 1997 concerning Land Registration stating that the

certificate of land title must be checked to the land

office,the certificate shall not become collateral for

debt, and the sale deed has been signed before the

authorized Land Deed Official. In addition, based on

Law Number 21 of 1997 that has been amended by

Law Number 20 of 2000 (Law of BPHTB/Transfer

Tax) the buyer is required to make payment of the

transfer tax. Furthermore, based on the Government

Regulation Number 34 of 2016 on 8 August 2016

concerning Income Tax from Ownership Transfer of

Land and/or Building, the seller has paid the income

tax.

The fully-settled sale and purchase deed shall

contain the absolute power which contains

irrevocable elements and which is not void pursuant

to Article 1813 in conjunction with 1814 of the Civil

Code because the sale is already clear and paid in cash

(Subekti, 2008). Besides, it also contains a clause

stating that the buyer has full ownership. Such power

is very important for the signing of the Sale Deed

before the Land Deed Official whose working area is

in accordance with the Regency/City where the land

and/or the building is located.

The results show that the presence of power of a

blankformenables the buyer, based on the sale-

purchase deed,to sell the land to another party.

Consequently, the government is disadvantaged

because several transactions have not paid income tax

and have been executed without land title transfer,

denying the Instruction of the Minister of Home

Affairs Number 14 of 1982 concerning prohibition of

the use of absolute power as theland right transfer to

avoid legal smuggling of tax obligations.

The legal analysis of the need for the power of a

blankformin the fully-settled sale-purchase deed is

that, based on Article 5 Paragraph 2 of the

Government Regulation Number 34 of 2016, the

seller will only signs the amendment or addendum of

the sale-purchase deed if it is proven that the

obligation as referred to in Paragraph 1 has been

fulfilled by submitting a photocopy of the Tax

Payment Slip or other printed administrative facilities

which are equated with the relevant Tax Payment

Slipwhich has been examined by the Tax Service

Office. This means that the fully-settled sale-purchase

deed can be made by the parties before a notary after

the seller pays income tax; thus the seller will not be

able to avoid tax obligations, and the power of a

blankformis no longer needed. If, in the future, the

buyer feels unable to sign the saledeed before the

Land Deed Official, the buyer must have appointed a

name as the representative. Then, the sale-purchase

deedmust be immediately followed up with the sale

deed of Land Deed Officialbecause the agreement is

merely an obligatory agreement. This means that

when an agreement is valid, it is binding, but limited

only to giving rise to rights and obligations, and at

that stage, the ownership transfer has not yet occurred

(Fuady, 1999).

As a result, the agreement function is legally and

economically fulfilled. Legally, the agreement can

provide a legal certainty of the parties and

economically, through such agreement, the usage

value becomes higher (Salim, 2004).

4 CONCLUSION

Based on the Government Regulation Number 34 of

2016 on August 8, 2016 concerning Income Tax from

Ownership Transfer of Land and/or Building, and

Law Number 21 of 1997 that has been amended by

Law Number 20 of 2000 (Law of BPHTB/Transfer

Tax), the Government Regulation Number 24 of 1997

on Land Registration, and Notary Law (UUJN), the

ICOSTEERR 2018 - International Conference of Science, Technology, Engineering, Environmental and Ramiﬁcation Researches

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power of a blank form in a fully-settled sale-purchase

deed is prohibited. This makes the parties unable to

avoid their obligations to pay the income tax and the

transfer tax. The presence of power of a blank form

provides opportunity to the parties to deny their

obligations of the title transfer. By including the name

of the donee, the buyer will immediately make the

sale deed before the Land Deed Official as one of the

requirements of a title transfer.

As long as the land office apparatus, as the official

in charge of title transfer, continues legalizing the

power of a blank form in a fully-settled sale-purchase

deed, then this violation of law is unstoppable.

5 SUGGESTIONS

Strict sanctions from the Notary Supervisory Board

are required against the notary who violates his

position because the sanctions given by the Notary

Law (UUJN) still provides a space for a notary to

make an underhand deed, allowing the parties to

claim for a compensation.

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Danuri, N., 2011. Peralihan hak atas tanah melalui PPJB

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