NOTARY
RESPONSIBILITY FOR LOSS OF LAND TITLE DUE TO NOTARY NEGLIGENCE
|
Abstract This article discusses the notary's responsibility
for the loss of land certificates due to the notary's negligence. The purpose of this study is to find out Notary
Responsibility for Loss of Land Title Due to Notary Negligence. This research
uses normative or literature research methods by analyzing relevant laws and
regulations regarding the authority and responsibilities of notaries. The
research results show that notaries have civil liability for losses caused by
negligence or deliberate action in carrying out their duties. This civil
liability includes reimbursement of costs, compensation and interest to the
party who feels aggrieved. Notaries also have a professional code of ethics
that regulates their duties and responsibilities, including the obligation to
safeguard the interests of related parties and act with integrity. In the
case of loss of a land title certificate, the notary must be responsible for
the documents entrusted and may be subject to civil sanctions if negligence
occurs. Keywords: responsibility, certificate,
negligence and notary. |
INTRODUCTION
Indonesia as a
state of law has principles to ensure certainty, order and legal protection
based on truth and justice in accordance with what is regulated in the
Constitution of the Republic of Indonesia 1945 (Kusumaatmadja, 1995). Legal certainty is needed in people's lives, especially the public
service sector which is currently growing along with the increasing public need
for services. This also has an impact on Notaries. Notary is one of the State
instruments appointed and dismissed through the Minister of Law and Human
Rights (Menkumham) (Fransiska, 2021). The Notary's position as a functionary in society is still considered
respected. A Notary Public is considered an official where someone can obtain
legal advice and the information contained in the Notary Deed must be reliable,
reliable and provide guarantees as strong evidence so as to provide legal
protection for the community (Tan, 2000).
It is stated in
Article 1 paragraph (1) of Law Number 2 of 2014 amending Law Number 30 of 2004
concerning Notary Positions (hereinafter referred to as UUJN) states that
"Notary is a public official who is authorized to make authentic deeds and
has other authorities as referred to in this law or under other laws� (Indonesia & No, 2014). An authentic deed under Article 1868 of the Civil Code (hereinafter
referred to as the "KUHPer") is a deed made
in the form prescribed by law by or before a public official authorized for it
at the place where the deed was made (Afifah, 2017). Notaries in carrying out
their positions have a complex role because they play an important role in
connecting social life, practical economics with laws and regulations and the
legal world. Notaries as public officials (openbaar ambtenaar) are also responsible for making written evidence
of legal acts that can be accounted for (Budiono & Moeliono, 2006).
Notaries in
carrying out their positions are not those who get salaries from the Government
but get Honorarium and can also get commissions / wages from management
services (Khoirurrijal et al., 2022). Notaries as one of the general officials have a professional code of
ethics in carrying out their positions, because notaries also participate in
national development, especially in the field of law. In the code of ethics, it
is stipulated that notaries in carrying out the duties of their office are
aware of their obligations, work independently, honestly, impartially and with
a sense of responsibility.
Notaries are
based on moral values, so their work must be based on obligations, that is,
there is good will in themselves, not depending on the goals or results
achieved. Notaries really need inseparable morals and laws in order to be able
to carry out their professional duties flawlessly professionally from society Tedjosaputro, (1994) In carrying out their duties, they must be responsible, meaning:
1.
Willingness to do as well as possible any task that is included in the
scope of the profession.
2.
Act proportionally, without distinguishing between pay and free matters.
3.
Willingness to provide reports on accountability or implementation of
obligations.
A Notary in
carrying out the duties of his office must adhere to the Notary Office Code of
Ethics. Code of ethics is a guide, guidance, moral or moral guidelines for a
particular profession or is a list of obligations in carrying out a profession
compiled by members of the profession itself and binding them in practicing it.
It can be concluded that the Notary Code of Ethics is a guide, guidance, moral
guideline or decency of Notaries both as individuals and general officials
appointed by the government in order to provide services to the general public,
especially in the field of making deeds (Tedjosaputro, 1994).
Notary Code of
Ethics as stipulated in article 3 paragraph (4) Notaries must behave honestly,
independently, impartially, trustfully, thoroughly, full of responsibility,
based on laws and regulations, and the content of the Notary oath of office.
One of the obligations of a Notary Public is also regulated in the Notary
Office Law as stipulated in article 16 paragraph (1) is to act honestly,
thoroughly, independently, impartially, and safeguard the interests of related
parties in legal actions. One of these obligations requires a Notary to
safeguard the interests of parties, especially Notary clients, in legal actions
he does with the help of a Notary. Certificate belonging to Notary clients is
one of the things that must be maintained properly by a Notary. The submission
of the Notary client's certificate should be given to the client with the
knowledge of the relevant Notary. This is done in order to create legal
protection for certificate owners and the implementation of the authority and
obligations of a Notary as stipulated in the UUJN.
Notaries as
custodians are obliged to guard the goods as reflected in Article 1706 of the
Civil Code. Article 1694 of the Civil Code, "Custody of goods takes place,
when a person receives another person's goods with the promise to keep them and
then returns them in the same state". This provision stipulates that the
Notary Public as the recipient of the entrustment in the form of the
certificate to return the certificate in the same circumstances as the first
time given by the client.
But in reality,
not all Notaries carry out their obligations properly.� One example related to this can be seen in
the case of the Kendari court decision Number 14/Pdt.G.S/2020/PN Kdi. are Isran, S.E as plaintiff, PT Bank Mandiri
(Persero) Tbk. Kendari Masjid Agung Branch as
Defendant I, and Notary Rayan Riadi, S.H., M.Kn as Defendant II. There was an
unlawful act in the Kendari case, there was an unlawful fight in the case of
applying for credit and the credit was declared paid off. After repayment of
the credit, the plaintiff requested for the return of the certificate to
Defendant I but defendant I submitted that the certificate was still in the
office of Defendant II. That the Plaintiff always asked the Defendant about the
return of the Certificate but the Defendant never gave a definite answer, so
the Plaintiff sent a letter of complaint to the Financial Services Authority
(OJK), and on December 23, 2019 Defendant I submitted a complaint response
letter and an attachment letter from the statement of Defendant II explaining
that the Certificate that became the plaintiff's credit guarantee was lost and
was in the process of issuing a replacement certificate at the office Konawe land and takes approximately 3 months from the
filing of the Notary Public statement. The plaintiff made oral confirmation to
the local land office regarding the replacement of the certificate, but
according to information from the local land office there was no application
for the issuance of the replacement of the missing certificatet.
The event of loss
of a certificate of land rights is a form of negligence of the Notary in
carrying out his position, and shows that the certificate submitted in this
case to the Notary does not seem to be protected or maintained properly because
the Notary not only makes authentic deeds regarding all legal acts, but the
Notary must also safeguard the interests of the parties involved and be
responsible for the documents entrusted.
Based on this
description, the researcher will discuss the issue of Notary Responsibility for
it. To limit these problems, the subject matter was formulated How is the
Notary's responsibility for the loss of land certificates due to Notary
negligence.
METHOD�� RESEARCH
The method used in this study is a normative
research method or literature that emphasizes legal norms by analyzing related laws and regulations regarding the
authority and responsibility of Notaries based on Law Number 2 of 2014
concerning Amendments to Law Number 30 of 2004 concerning Notary Positions.
Peter Mahmud Marzuki, "Legal science is not descriptive, but prescriptive.
The object of legal science is the coherence between legal norms and legal
principles, between legal rules and legal norms, and coherence between
non-individual behavior and legal norms.� The approach method used in this study is the
statutory approach (statute approach). The type of data used in this study is
secondary data. This secondary data is data obtained from the results of reviewing
library materials and various literature that is closely related to research
materials to obtain legal materials. Secondary data in legal research are
divided into three groups, namely primary legal materials, secondary legal
materials, and tertiary legal materials. Data collection techniques with
literature studies. The data analysis technique in this study is a qualitative
juridical analysis method. The qualitative approach is data obtained from
literature research, then analyzed qualitatively to
get clarity and answers to the problems studied in a research.
RESULT
AND DISCUSSION
Notary is a legal
profession and thus the notary profession is a noble profession (nobile officium), because the notary profession is very
closely related to humanity. A deed made by a Notary Public can be the legal
basis for the status of a person's property, rights, and obligations or a
person's burden on an obligation (Anshori, 2009).
Profession is
defined as a field of work based on certain skills (skills, vocational, and so
on) education. Professional is defined as that concerned with the profession,
requiring special intelligence to carry it out, requiring payment to do so (as
opposed to observing) (Nasional,
2008). The elements of
professionalism are (Kosasih & Haykal, 2021):
1.
A job that requires expertise;
2.
For it is necessary to get special exercises;
3.
Earn income from it.
Thus, the
profession means a job with special skills that requires broad knowledge and
responsibility, which is devoted to the interests of many people, has an
organization or professional association and gets public recognition and has a
code of ethics (Yustica et al., 2020). Professional accountability is accountability to oneself and to
society. Being accountable to oneself means a professional works with moral,
intellectual, and professional integrity as part of his or her life. When
professionals provide services, they must always maintain the noble ideals of
the profession in accordance with the demands of their conscience obligations,
not because they are just hobbies (Yustica et al., 2020).
Being responsible
to the community means the willingness to provide the best possible service in
accordance with the profession, without distinguishing between high-pay, lower
or unpaid services and producing quality services, which have a positive impact
on society. The service provided is not only motivated by seeking profit but
also devotion to fellow human beings. Notary work takes precedence over
remuneration (income). This means prioritizing what must be done, not how much
payment is received. Client satisfaction takes precedence (Jurdi, 2022).
Professional
attitude is also inseparable from an obligation of the profession itself. A
Notary Public who is entrusted by the community has obligations regulated by
UUJNP in Article 16 paragraph (1), including:
a.
Act trustfully, honestly, thoroughly, independently, impartially, and
safeguard the interests of related parties in legal actions;
b.
Create a deed in the form of a Minuta Deed and
save it as part of the Notary Protocol;
c.
Attach letters and documents and fingerprints to the Minuta
Deed;
d.
Issuing a Grosse Deed, Copy of Deed, or Quotation of Deed based on Minuta Deed;
e.
Provide services in accordance with the provisions of this Law, unless
there is a reason to refuse it;
f.
Keep everything confidential about the Deed he made and all information
obtained for the preparation of the Deed in accordance with the oath / promise
of office, unless the law specifies otherwise;
g.
Bind the Deed he made in 1 (one) month into a book containing no more
than 50 (fifty) Deeds, and if the number of Deeds cannot be contained in one
book, the Deed can be bound into more than one book, and record the number of Minuta Deeds, months, and years of manufacture on the cover
of each book;
h.
Make a list of the Deed of protest against non-payment or non-receipt of
securities;
i.
Make a list of Deeds relating to wills in the order of time of making
Deeds each month;
j.
Send a list of deeds as referred to in letter i
or a list of nil relating to wills to the center of
the list of wills at the ministry that organizes government affairs in the
field of law within 5 (five) days in the first week of each subsequent month;
k.
Record in the reportorium the date of sending
the list of wills at the end of each month;
l.
Have a stamp or stamp that contains the state of the Republic of
Indonesia and in the space surrounding it is written the name, position, and
place of residence concerned;
m.
Read the Deed in front of the face in the presence of at least 2 (two)
witnesses, or 4 (four) special witnesses for the preparation of the will deed
under hand, and signed at that time by the face, witnesses, and Notary
n.
Accepting apprentices of Notary candidates.
In addition to
the obligations stipulated in the UUJN, the obligations of Notaries are also
regulated in the Notary Code of Ethics, which are as follows (Suryani et al., 2020):
a.
Have good morals, morals, and personality;
b.
Respect and uphold the dignity and dignity of the Notary office;
c.
Safeguarding and defending the honor of the
association;
d.
Act honestly, independently, impartially, full of responsibility, based
on laws and regulations and the contents of the Notary oath of office;
e.
Improving the knowledge that has been owned is not limited to legal and
notarial science;
f.
Prioritizing service to the interests of society and the country;
g.
Provide deed making services and services to other Notaries for people
who cannot afford it without collecting honorarium;
h.
Establish one office at the place of residence and the office is the only
office for the Notary concerned in carrying out the duties of the daily
position;
i.
Install 1 (one) signboard in front of / in the office environment with a
choice of sizes, namely 100 cm x 40 cm, 150 cm x 60 cm, 200 cm x 80 cm, which
contains:
1)
Full name and legal title.
2)
Date and number of the last Appointment Decree as Notary.
3)
Place of position.
4)
Office address and telephone/fax number. The base of the board is white
with black letters and the writing on the signboard must be clear and easy to
read, except in the office environment it is not possible to install the
signboard
j.
Attend, participate and actively participate in every activity organized
by the association, respect, obey, carry out any and all decisions of the
association;
k.
Pay association dues in an orderly manner;
l.
Pay mourning money to help the heirs of deceased colleagues;
m.
Implement and comply with all provisions regarding honorarium stipulated
by the association;
n.
Carrying out the position of Notary Public especially in making, reading,
and signing deeds is carried out in his office, except for valid reasons;
o.
Creating a sense of kinship and togetherness in carrying out the duties
of the position and daily activities and treating each other well, respecting
each other, respecting each other, helping each other and always trying to
establish communication and friendship;
p.
Memperlakukan setiap klien yang datang dengan baik,
tidak membedakan status ekonomi dan/atau status sosialnya;
q.
Treat every client who comes well, does not distinguish their economic
status and/or social status:
1)
UUJN
2)
Explanation of Article 19 paragraph (2) UUJN
3)
Content of Notary oath of office
4)
Articles of association and bylaws INI
r.
Make deeds in the amount of reasonable limits to
carry out laws and regulations, especially the Law on Notary Positions and the
Code of Ethics.
Legal
responsibility is divided into three types, namely civil law responsibility,
criminal law responsibility, administrative law responsibility. Based on the
above cases, the Notary's actions can be categorized as legal liability in the
civil field originating from unlawful acts (Ola et al., 2017). Legal liability is liability with elements of error, willfulness and negligence as mentioned in Article 1365 of
the Civil Code "that any who violates the law and brings harm to another
person, obliges the person who caused the harm because of his fault to
indemnify such� (Kie, 2007). So according to Article
1365 of the Civil Code, the definition of unlawful acts is an unlawful act
committed by a person who because of his fault causes harm to others. Legal
acts consist of 3 types according to legal science, namely (Fuady, 2002):
a.
�Intentional unlawful acts
b.
Unlawful acts without fault (without any element of willfulness
or negligence)
c.
Unlawful acts due to negligence.�
Most Notaries
face lawsuits based on unlawful acts, because the name of the party who took
the certificate is not listed on the receipt, so the party who took the
certificate is not a party to the certificate custody agreement (privity of
contract). Regarding unlawful acts is regulated in Article 1365 of the Civil
Code, the elements of which include:
a.
�There is an act against the law
b.
There was an error
c.
There is a causal relationship between loss and deed
d.
There are disadvantages.�
In the above
case, the RR Notary should be responsible for everything that happens regarding
the certificate entrusted to him, but this is unless the recipient of the
entrustment does not have responsibility for events that cannot be ruled out
(force majure). However, there are different
conditions where the RR Notary can be said to be less careful in returning the
certificate entrusted to him. RR notaries can be sued in the general court in
civil cases for unlawful acts (onrechtmatigedaad) for
not returning land titles to their owners.
There are several
reasons for Notaries to hold or entrust Land Rights Certificates, namely (Al Misbakh et al., 2019) :
a.
�To check with BPN
b.
The existence of Notary Honorium that has not
been paid by the buyer and / or seller in accordance with what is agreed by
both parties
c.
The developer entrusts a master certificate for the purposes (separation)
if someone will buy land and buildings built by the developer concerned.
d.
The buyer has not fulfilled its obligation to pay in full the price of
the land that is the object of sale and purchase�
The storage of
title certificates over land by a Notary Public will cause an event of transfer
of proof of ownership of title to land (Chairunissa & Putra, 2022).
Liability with an
element of fault, especially negligence as contained in Article 1366 of the
Civil Code, "everyone is responsible, not only for losses caused by deeds,
but also for losses caused by negligence or intentionality, and absolute
responsibility (without fault) as contained in Article 1367 of the Civil Code,
"a person is not only responsible for losses caused by his own
actions,� but also for losses caused by
the actions of those who are his dependents, or caused by goods under his
control� (Chairunissa & Putra, 2022). Notary action will be related to these elements, therefore an act of
error and / or intentionality of the Notary that harms other parties in
carrying out their work and position. Notaries are civilly responsible for
their negligence and negligence, resulting in the transfer of title
certificates to land belonging to the claimants into the hands of parties who
are not. Individual liability is aimed at the return of civil losses of the
parties in the form of civil sanctions. The sanction can be in the form of
reimbursement of costs, compensation and interest which is the cause and effect
received by the Notary for the claims of the faces who feel aggrieved.
Reimbursement of costs, damages or interest must be based on a legal
relationship between the Notary and the parties facing the Notary.
The Notary's
authority in terms of storing or withholding the certificate of land rights is
not further regulated in the UUJN, so that the return of the certificate must
be in accordance with the subject matter in the Letter of Receipt that has been
given, and the notary must return the land certificate to the owner if there is
no legal action anymore.
Regarding
government responsibility, the concept of personal error and misposition is
known. Personal mistakes are those committed not related to public service but
show the person's weaknesses, desires or passions and lack of caution or
negligence. While office errors occur due to errors in the use of authority,
and are only related to public services (Hadjon et al., 2010).
Based on the
above opinion, it can be seen that in the case of Notary RR it is a personal
mistake, namely lack of prudence or negligence in carrying out his position. So
that this act can be based on Article 17 paragraph (1) letter i and paragraph (2), UUJN namely Notaries are prohibited:
"doing other work that is contrary to religious norms, decency, or decency
that may affect the honor and dignity of the Notary
Office. Notaries who violate the provisions referred to in paragraph (1) may be
subject to sanctions in the form of: a. written warning; b. temporary
suspension; c. honorable dismissal; or d. dishonorable dismissal.
CONCLUSION
Based on the research conducted, it can be
concluded that the Notary's responsibility for the loss of land certificates
due to Notary negligence is civil liability. Notaries are civilly liable for
negligence and negligence in carrying out their duties. This civil liability
includes the return of civil losses of the parties who feel aggrieved, such as
reimbursement of costs, damages, and interest that are the result of the claims
of the parties who feel aggrieved.
Notaries also have a professional code of
ethics that regulates their duties and responsibilities. In carrying out their
duties, Notaries must work independently, honestly, impartially, and with a
sense of responsibility. Notaries must also be based on moral values and
obligations, so that they can carry out their professional duties flawlessly
professionally from the community. In the event of loss of land title
certificates, the Notary Public must safeguard the interests of the parties
concerned and be responsible for the documents deposited. In the event of
negligence that results in the loss of the certificate, the Notary Public may
be subject to civil sanctions in the form of reimbursement of costs, damages,
and interest to the party who feels aggrieved. In this study, the method used
is a normative research method or literature that emphasizes legal norms by analyzing related laws and regulations regarding the
authority and responsibility of Notaries.
REFERENCES
Afifah, K. (2017). Tanggung Jawab Dan Perlindungan Hukum Bagi Notaris
Secara Perdata Terhadap Akta Yang Dibuatnya. Lex Renaissance, 2(1), 10.
Al Misbakh, B. Z., Hoesin, S. H., & Latumeten, P. E. (2019).
Perlindungan Hukum Bagi Notaris Yang Menahan Sertipikat Demi Menjaga
Kepentingan Para Pihak Dalam Pengikatan Jual Beli (Analisis Putusan Pengadilan
Negeri Bukit Tinggi Nomor 53/Pid. B/2017/Pn. Bkt). Indonesian Notary, 1(003).
Anshori, A. G. (2009). Lembaga Kenotariatan Indonesia: Perspektif Hukum
Dan Etika.
Budiono, H., & Moeliono, T. P. (2006). Asas Keseimbangan Bagi Hukum
Perjanjian Indonesia: Hukum Perjanjian Berlandaskan Asas-Asas Wigati Indonesia.
Citra Aditya Bakti.
Chairunissa, R., & Putra, M. F. M. (2022). Tanggung Jawab Notaris
Terhadap Penyerahan Sertifikat Hak Atas Tanah Milik Penghadap Kepada Pihak Yang
Tidak Berhak. Justicia Sains: Jurnal Ilmu Hukum, 7(2), 305�323.
Fransiska, L. (2021). Degradasi Kekuatan Pembuktian Dan Pembatalan Akta
Autentik (Studi Putusan Mahkamah Agung Republik Indonesia No. 2377k/Pdt/2016).
Indonesian Notary, 3(2), 22.
Fuady, M. (2002). Perbuatan Melawan Hukum. Bandung: Citra Aditya Bakti.
Hadjon, P., Lotulung, P. E., & Laica, H. M. (2010). Hukum Administrasi
Dan Good Governance. Buku Dosen-2010.
Indonesia, R., & No, U.-U. (2014). Tahun 2014. Lembaran Negara
Republik Indonesia Tahun.
Jurdi, F. (2022). Etika Profesi Hukum. Prenada Media.
Khoirurrijal, M. A., Djumikasih, D., & Herlindah, H. (2022). Keabsahan
Tindakan Notaris Menahan Sertipikat Milik Klien Dalam Hal Terjadi Kurang Bayar
Komisi Jasa Pengurusan Sertipikat. Jurnal Hukum Dan Kenotariatan, 6(1),
291�310.
Kie, T. T. (2007). Study Notariat Di Serba Serbi Praktek Notaris. Ichtiar
Van Hoeven, Jakarta.
Kosasih, J. I., & Haykal, H. (2021). Kasus Hukum Notaris Di Bidang
Kredit Perbankan. Bumi Aksara.
Kusumaatmadja, M. (1995). Pemantapan Cita Hukum Dan Asas-Asas Hukum
Nasional Di Masa Kini Dan Masa Yang Akan Datang. Makalah, Jakarta.
Nasional, D. P. (2008). Kamus Besar Bahasa Indonesia (Kbbi). Jakarta:
Gramedia, 12.
Ola, C. Y. I., Huda, K., & Putera, A. P. (2017). Tanggung Jawab
Pidana, Perdata Dan Administrasi Asisten Perawat Dalam Pelayanan Kesehatan Desa
Swadaya. Legality: Jurnal Ilmiah Hukum, 25(2), 134�146.
Suryani, C., Handajani, L., & Effendy, L. (2020). Faktor-Faktor Yang
Mempengaruhi Nilai Perusahaan Dengan Profitabilitas Sebagai Variabel
Intervening. E-Jurnal Akuntansi, 30(7), 1857.
Https://Doi.Org/10.24843/Eja.2020.V30.I07.P18
Tan, T. K. (2000). Studi Notariat: Beberapa Mata Pelajaran; Dan,
Serba-Serbi Praktek Notaris. (No Title).
Tedjosaputro, L. (1994). Etika Profesi Notaris Dalam Penegakan Hukum
Pidana. Universitas Gadjah Mada.
Yustica, A., Ngadino, N., & Sukma, N. M. (2020). Peran Etika Profesi
Notaris Sebagai Upaya Penegakan Hukum. Notarius, 13(1), 60�71.
Copyright
holders:
Risko Fitriano, Jeane Neltje Saly (2023)
First
publication right:
Injurity - Interdiciplinary
Journal and Humanity
This article is licensed under a Creative
Commons Attribution-ShareAlike 4.0 International