1

A. Background Issues
Today, economic activity in Indonesia has become advanced. Various

business activities began popping up in all areas to support the development

of the country. Along with the emergence of a wide range of business

activities in Indonesia, the more capital is needed. Capital accumulation can

be done in various ways. One of them through the proposed bank credit to

banks in Indonesia.
Banking in Indonesia in conducting their business based on the

principles economic democracy. Its main function is as a collector and

regulator of public funds, and aims to support the implementation of national

development in order to improve equity, economic growth and national

stability towards improving the welfare of the people (Article 2, 3 and 4 of

Law Number 7 of 1992) .1

To apply for credit, the public can not be arbitrary. Credit application

must meet some certain requirements that must be adhered to by the

prospective borrower. Bank as the lender will apply the terms of credit

disbursement and will perform credit analysis to assess whether the

prospective borrower deserves credit disbursement. In analyzing the

prospective borrower, the bank must remain guided by the precautionary

principle banks, namely 5C, 4P, 3R. The principle is a guarantee that must be

held by banks such as character, capital, capacity, collateral, condition of

economy, Personality, Purpose, Prospect, Payment, Return, Repayment, Risk

bearing ability.

1
Mohammed Djumhana, 2003, Banking Law in Indonesia, PT. Citra Aditya Bakti, Bandung,
page 3
 2

Any credits that have been approved and agreed upon between the

creditor and the debtor then must be poured in the credit agreement in

writing.2 In the credit agreement should clearly indicate the identity of the

parties, the amount of money lent, interest, term loans, guarantees and clauses

are considered necessary for inclusion.

Apply for credit in the bank will certainly talk about mortgage credit.

Collateral loans are collateral material or additional collateral required by

banks to exist, in order to facilitate the execution if the debtor defaults. The

existence of collateral in the form of collateral in lending, although not

regarded as important can be considered as an absolute. In principle not

always disbursement of bank credit must be accompanied with the

requirements of the collateral because it was seen on a good business prospect

of prospective borrowers, but who is capable of knowing what will happen

tomorrow. Therefore, collateral requirements in the form of collateral is

important especially for security and safety aspects of banking business.

Credit guarantees can be a moving object or objects are not moving.

Each was tied with its own security institutions are already regulated in the

legislation. For moving objects there are institutions that guarantee the

binding of liens, mortgages, and Fiduciare Eigendom Overdracht (FEO) or

more commonly called a fiduciary. For immovable objects can use the

Mortgage as a bail bonding agency. The object is not moving can be

categorized as a ground. The collateral in the form of land can be land

property rights, right to the business, right to build. In this case, land that has

2
Ibid, page 385
 3

been certificated will be more readily accepted by banks as collateral for

loans.
But in fact there is also a land that still uses legacy status as credit

collateral. Imposes a mortgage over land inheritance still status must meet

several specific requirements for disbursement of credit by using land as

collateral inheritance can be done. Terms include: Certificate of Death, Heir

Certificate (endorsed by the Kelian Office (Head of Environment), Head of

Village / Village Head, Head), Genealogy Heritage (ratified by Kelian Office

(Head of Environment), Head of Village / Village Head, District Head),

Power of Attorney / Agreement to pledge (signed by the authorizing Heirs as

approved by the Kelian Dinas (Head of Environment), Head of Village /

Village Head, District Head. Creditors also must be smart in doing credit

analysis. It is not uncommon with the credit application was rejected by the

land inheritance the bank because the bank does not want to take risks when

these problems occur on land.

The imposition of such a mortgage is an aberration of nature can not

be divided Mortgage him. This can misused by the parties provided that the

parties really want it so and agreed in Akta Pemberian Hak Tanggungan

(APHT). Deviations or exceptions that are to accommodate the credit needs

of the developed world.3

Application of loading still a legacy of land as loan collateral in

practice may not be able to walk easily. Banks as creditors would have to be

careful when accepting collateral such as this, to minimize the risk if the

3
ST. Remy Sjahdeini, 1999, Hak Tanggungan, Asas-Asas, Ketentuan-Ketentuan Pokok dan
Masalah yang Dihadapi oleh Perbankan (Suatu Kajian Mengenai Undang-Undang Hak
Tanggungan), Alumni, Bandung, page 22
 4

debtor defaults. The problem will not stop there, as it would appear the

demands of the other heirs to the land of their inheritance. When things like

this then it should be noted how the execution of inherited land. Regarding

legal protection for the parties must also be considered. Because the

transaction bank credit course each party has an interest. For the creditor and

debtor, when the event of default, would have to immediately get ready to

settle the affairs of debt claims. The lender must consider how execution can

return to the remaining accounts receivable to the bank. Party debtor must

remain responsible for their debts to creditors and other parts of the heirs in

case of execution. Then for the other heirs should also get legal protection for

the inheritance of his land can still be held. These interests may be in conflict

with each other to be able to fulfill a sense of justice for each party so as not

to disadvantage the future. Problems like these that make researchers

interested in conducting research to get answers to these problems.

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B. Problem Formulation

Based on the exposure that has been described in the above

background, the researchers propose in this occasion the following problems:

1. What is the basic philosophical, sociological and legal for a bank to

receive the imposition of mortgage on land that was still status

inheritance as collateral?

2. How does the execution of mortgages on land are still a legacy, if the

debtor defaults?

C. Research Methods

Research on "The imposition of Mortgage on the Land Heritage status

is still on the PT. Bank Pembangunan Daerah Bali branch of Payangan "is a

legal research, legal research is a scientific activity, which is based on the

method, systematic and specific ideas that aim to learn one or more symptoms

of certain laws, by analyzing it. Except that it also held in-depth examination

of the legal facts, to then seek a solution to the problems that arise in the

symptom in question.4

Research to be done about the imposition of Mortgage author of Land

Heritage status is still on the PT. Bank Pembangunan Daerah Bali branch of

Payangan will use the method of normative juridical approach of using legal

norms that are explained by examining and discussing the legal regulations

currently applicable to the imposition of mortgage on land that still a legacy,

4
Soerjono Soekanto, 1986, Introduction to Legal Research, publisher of the University of
Indonesia, Jakarta, page 43
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and examines how the application / implementation through field studies to

obtain primary data.

Research to be done about the imposition of Mortgage author of Land

Heritage status is still on the PT. Bank Pembangunan Daerah Bali branch of

Payangan more emphasis on field research in obtaining the primary data. As a

first step of research carried out also with respect to the secondary data with

the normative juridical research conducted research conducted by giving

priority to the way research literature to obtain secondary data, followed by a

study of data on site or on any party associated with the object of research to

obtain primary data.

In conducting this research, it is very important to obtain or get the

materials to be used in a data collection. To obtain data and information

relating to the study authors determined first responders, resource persons and

research areas to be studied.

The research location is the Payangan Village, which is one village

where frequent charging mortgage transactions are still a land inheritance.

Data collection tool that is used is through interviews conducted in writing by

listening directly or information from respondents and informants.

The data have been collected either from field research as well as

library research will be analyzed qualitatively.

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D. The results and discussion

1. Basic Philosophical, Sociological and Juridical for A Mortgage Bank

Receiving imposition of a still status Heritage Land as Loan

Collateral

The extension of credit with collateral of land inheritance is

indeed still a credit transaction with a big risk for banks. So banks must

have a rationale and strong consideration to be able to provide loans with

collateral of land that still a legacy. Basic philosophical meaning is the

rationale. Basic sociological meaning is the basic reality that occurs in

society. Basic means basic juridical laws. Then the basis of philosophical,

sociological and legal for a bank to receive the imposition of a mortgage

over land is still a legacy:

Basic philosophical: a bank is basically held to provide credit

loans to the public as customers debtors. This is in order to achieve the

goal of channeling bank credit to the community. Lending would not be

carelessly done by the bank. Loans credit must be accompanied by

collateral. Still a legacy of land could be collateral. Because the basic

premise that there is still a legacy of land which includes objects that have

economic value. Land inheritance transferable and can be executed. At its

core credit loans can be done provided that there is no guarantee. So even

though the land is still a legacy, can be used as collateral for credit

provided that meets the requirements predetermined by the bank and can

meet the standards of credit analysis of the bank concerned.

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In addition, the basis of credit is trust. Then the collateral is

actually just to complete the formal requirements of credit disbursement.

In addition to collateral, of course, the Bank already has a factor of 4

(four) other C of principle 5 (five) C, namely: character, capital, capacity,

and condition of economy. Before extending credit, the Bank is definitely

going to judge character, capital or income, capacity and economic

conditions in the future so if credit is given. That's why the Bank felt the

need to serve and provide credit facilities with the collateral of land that

still a legacy.

Sociological basis: although at great risk, credit transactions with

collateral of land that still remain to be done on the heritage status of PT.

Bank Pembangunan Daerah Bali branch of Payangan. This happens

because in reality most people in Payangan not divide the inheritance.

Other commercial banks in the region Payangan is still there, but because

they feel the provision of credit with collateral of land which is the

heritage status of credit transactions with greater risk, then the other

commercial banks do not accept these credit with collateral in addition to

a long process. Based on the procedures for granting loans with collateral

is still a land of inheritance, can be seen that the debtor has in good faith

by obedience to all requirements of the Bank's credit to be disbursed.

People in the village of Payangan that most do not divide the inheritance,

of what it will come clean to the Bank about what it can use as collateral
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for loans even if the land is still a legacy. Because basically, the only

collateral to meet the formal requirements of loan disbursement.

When people really need the money in quick time and undivided

inheritance, then the PT. Bank Pembangunan Daerah Bali branch of

Payangan need to consider to provide services to the mortgage loans are

still a legacy of land. If the loan with collateral is still a land of

inheritance is not given, then the public can not get the credit and

community economic situation does not develop. PT. Bank Pembangunan

Daerah Bali branch of Payangan is a regional bank, then to support and

develop local economic potential, the bank will provide loans with

collateral of land inheritance. PT. Bank Pembangunan Daerah Bali

branch of Payangan is a bank that received loans with collateral of land

that still a legacy.

Legal basis: the imposition of mortgage on land that was still

status inheritance as collateral is not regulated in Law No. 4 of 1996 on

Mortgage. But when viewed under Article 8 and Article 11 paragraph (1)

letter e Mortgage Law. Article 8 provides that mortgage providers should

have the authority to take legal actions against the mortgage object in

question (Article 8 paragraph (1) Mortgage Act) and the authorization

must exist at the time of mortgage application made (Article 8 paragraph

(2) mortgage Act), these provisions may be fulfilled only if the object

already existing mortgage and have also given the land where the soil.

Furthermore, since Article 11 paragraph (1) letter e determine that the

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mortgage deed must be included giving a clear description of the rights

object dependent, it is not possible to give a clear description as it is

meant that when mortgage object do not exist and yet unknown features

of characteristics. That the object of mortgage must specifically be

indicated in the Deed of Mortgage Giving is concerned.

This means that when mortgage object registered by the Land

Office mortgage must be registered on behalf of the rights of dependents,

it means also that at the time made a provision of the Deed of Mortgage

was not to be registered on behalf of the rights of dependents, but as

stated in the explanation general the number 7, just when there is

confidence in the PPAT that the mortgage provider has the authority to

take legal actions against the mortgage object in question. In this regard,

in the Minister of Agrarian State / Head of National Land Agency No. 5

Year 1996 on Article 2 contained requirements that the legal basis for the

imposition of mortgage on land that is still the legacy status as credit

collateral, namely:

"Mortgage Objects that have been registered, but not on behalf of

the rights of dependents, while the object is already acquired

mortgage mortgage provider for transitional rights through

inheritance or transfer of rights."

The original document which becomes evidence for the law of

inheritance that resulted in transfer of land rights to the mortgage

provider that is a description of inheritance and division of Inheritance

 11

Act when it held the division of inheritance. When viewed from the

article above, then the debtor as one of the heirs named on the certificate

is still a legacy of land, is authorized to take legal action to charge the

land as loan collateral. Debtor authorities because he still is one of the

heirs of the land that legacy status is still possible even though his name

has not been listed on the title deed in question. However PPAT have a

belief that the debtor is indeed one of the heirs authorized to take legal

actions against the estate and this was evidenced by the testimony of

inheritance and the deed was done when the division of inheritance

inheritance. In Akta Pemberian Hak Tanggungan (APHT) was

specifically mentioned about APHT object, namely land inheritance.

Also PT. Bank Pembangunan Daerah Bali branch of Payangan

will remain guided by the Board of Directors of Bank Indonesia Decree

No. No. 27/16/Kep/Dir and SEBI. 27/17/UPPB dated March 31, 1995 on

Pedoman Penyusunan Kebijaksanaan Pemberian Kredit (PPKPK) and the

extension of credit policy guidelines PT. Bank Pembangunan Daerah

Bali branch of Payangan. If the procedure meets the requirements

specified and does not conflict with laws and regulations that apply the

legitimate credit transactions with collateral of land that legacy status is

still to be done.
 12

2. Mortgage Execution Process over the Land of Heritage status is still if

the debtor defaults.

A credit will not be directly declared as non-performing loans if

borrowers are late paying their credit. Banks will categorize up to five

stages to a credit can be termed as bad credit. Stages are: Credit smoothly,

Credit special mention, substandard loans, doubtful loans and bad credit.

Debtors will be defined as having bad credit if he does not pay a credit of

up to 9 (nine) months or 270 (two hundred and seventy) days after the

realization of the credit. When borrowers have bad credit, of the bank as

the lender will soon take security measures so that the funds have been

channeled to return intact.

Actions to be taken by the bank when there are borrowers who

have bad credit is to approach or negotiate with the debtor. To be able to

return the funds of the bank, the bank will suggest to the creditor to sell

assets or collateral. Surely must be seen first in good faith of the debtor

that he really wanted to solve the problem of credit logjam. If it is true

that the debtor has a good faith debtor will obey the suggestion of the

bank to sell its assets. In addition to the good faith of the debtor, sale

collateral still a legacy of land which would have the knowledge and

approval of the other heirs. Because after all, too, land pledged by the

debtor is also still the right of the other heirs. For that banks should not be

directly executed so there is debtors who have bad credit.

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Banks should not be arbitrarily directly sell such collateral

unilaterally without the consent of the debtor and the other heirs. For the

general requirements for a settlement through peaceful channels based

Lending Guidelines PT. Bank Pembangunan Daerah Bali branch of

Payangan is the existence of good faith from the customer and there is no

other way a better solution that can be taken. Execution by the sale of

assets or collateral under the hand by way of negotiation. As a first step

the bank will provide an opportunity for debtors to seek a buyer for the

object itself guarantee in the specified time period. If the debtor is not

able to find buyers for their dependents the right to object then the bank

will take over the sale of collateral objects. So the bank will help the

debtor to find enthusiasts on the estate which is used as collateral. The

sale of assets or collateral under the hand selected as the settlement is still

a cause of familial and in terms of price would be more profitable for the

debtor.

Once a buyer is obtained, then the process of selling the land will

be as common land sales process. However, the bank provided always

will be present at the time of the transaction and the debtor pledged the

proceeds will be submitted to the bank as loan repayment. The remaining

proceeds will be used by the debtor to share with other heirs. Although it

might not be large enough to replace their losses, at least the other heirs

still get their share of compensation money.

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In this case the strong position of the bank as a lender and get the

protection that is sure to be able to get the funds that have been channeled.

If the sales under the hand does not work or the debtor refuses to sell its

assets are under arms, then the bank may request the court to execute the

debtor's assets or collateral. Debtor was actually getting protection when

in good faith want to comply with advice the bank to sell assets or

collateral to resolve bad credit is going through. So here the other heirs

who do not obtain legal protection. Banks as lenders will only relate to the

debtor, while the other heirs are considered already approved and know

the risks of implementation of credit with collateral in the estate and

should be advised of something that happened to the debtor. In fact,

settlement of bad debts with collateral in the estate settled mostly by way

of asset sales under the hand. Such a resolution was chosen by the bank

and the debtor for easier implementation and in terms of price would be

more profitable and does not take much time.

If the resolution procedures of loading bad credit mortgage on

the land that still a legacy of the sale of assets or collateral in the hands of

the terms of the credit agreement, then such procedures are not included

in the credit agreement. In the credit agreement, stated that the way to

completion if the debtor defaults on credit extended to him, then the

solution will be based on bad credit settlement procedure as contained in

the Mortgage Act, namely by way of direct executions.

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However, recall that the dependent objects such as land rights are

still a legacy, then the Bank may conclude that the land was not only

belong to one person. There are still heirs other than the debtor. That is

why the Bank still appreciate the rights of other heirs. As a bank that

carries the sense of family, it is impossible to PT. Bank Pembangunan

Daerah Bali branch of Payangan direct execution. Should be chosen so

that the middle way to solving this problem. Then the chosen approach to

the debtor's family and other heirs and the procedure is the sale of assets

or collateral under the hand. The sale of assets or collateral under the

ground is also aiming to keep the image or the family name. So that the

problem does not occur convoluted between the Bank, borrowers and

other heirs.

Options to sell assets or collateral is below the hand to address the

problem of bad loans indirectly also to protect the rights of debtors and

other heirs. Although in fact the Bank does not deal directly with the other

heirs, a sense of kinship that makes the Bank respects the right of the

other heirs to the heritage status of land used as collateral by the debtor.

Because, if the means used is a direct execution, the Bank is entitled to

execute the mortgage, it will show the arbitrariness of the Bank. As if the

Bank does not give the debtor a chance to resolve the problem and will

form a bad image for the Bank, so that people will discouraged to apply

for credit in the bank. If the community does not ask credit to the Bank,

the banking activities will not run perfectly and economic conditions
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would not be advanced. When the chosen way of sale of assets or

collateral under the hand, then looks Bank provides an opportunity to

agree to return between the Bank, borrowers and other heirs to jointly

solve this problem of bad debts.

As a regional bank, of course, PT. Bank Pembangunan Daerah

Bali branch of Payangan want to build a good economic activity in the

village of Chedi. In order not to form the image that the bank has a rigid

system then the people in the village of Payangan prefer to get money

from loan sharks who would be very detrimental to society and to the

activities of the Bank itself. Then the Bank will provide options to resolve

the problem of bad debts by selling assets or collateral under the hand. Is

on condition that the debtor has in good faith to resolve the problem.

Because without the good faith of the debtor's assets or the sale of

collateral under the hand will not run smoothly and instead make a direct

Bank to execute collateral in the form of inherited land. If this happens

then there is no protection for debtors and other heirs of their rights.
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E. Conclusion

1. Philosophical basis of a bank to accept the imposition of mortgage on

land that is still the legacy status as a collateral loan is that any credit may

be carried out provided there is collateral as collateral. Guarantee must

also qualify the form of objects or object, having economic value, can be

transferred and executed. Sociological basis is that people in the village of

Payangan most only have an undivided land inheritance. When you're

requiring a credit and the estate has not divided the inheritance of land

owned jointly used as loan collateral. PT. Bank Pembangunan Daerah

Bali branch of Payangan as regional bank feels the need to consider the

estate loan transaction to the economic situation and potential of the

region can flourish. Juridical basis of mortgage bank accepts the

imposition of land inheritance is not regulated in Law No. 4 of 1996 on

Mortgage, but the PT. Bank Pembangunan Daerah Bali branch of

Payangan implicitly referring to Article 8 paragraph (1) and Article 8

paragraph (2) and Article 11 paragraph (1) letter e Law No. 4 of 1996 on

Mortgage. Additionally juridical basis can also be seen in Article 2 of

Regulation of State Minister for Agrarian Affairs / Head of National Land

Agency No. 5 of 1996 on Mortgage. Not forgetting the bank has always

relied on the Board of Directors of Bank Indonesia Decree No. No.

27/16/Kep/Dir and SEBI. 27/17/UPPB dated March 31, 1995 on

Guidelines for Development Policy Lending (PPKPK) and Credit Policy

Manual PT. Bank Pembangunan Daerah Bali branch of Payangan. Based

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on the analysis of the imposition of mortgage on land that still a

legitimate inheritance to be implemented.

2. The process of execution if the debtor defaults will be conducted through

the sale of assets under hand. This was chosen by the bank because it is a

way that is still a family and when viewed in terms of price would be

more profitable borrowers. The sale of assets or collateral under these

hands must be approved by the debtor and the other heirs in order to avoid

problems between banks, borrowers and other heirs. So the bank will

advise the debtor to sell assets or collateral. Debtor may find yourself

enthusiasts over the land or ask for help from the bank to find buyers.

When a transaction takes place, the bank will be present. Debtor will

promise to banks that the proceeds will be submitted to the bank as a

creditor for repayment of credit. While the rest of the proceeds will be

shared with other heirs as money damages for the estate to be sold to

settle debts of the debtor.

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REFERENCES

Mohammed Djumhana, 2003, Hukum Perbankan di Indonesia, PT. Citra Aditya

Bakti, Bandung.

ST. Remy Sjahdeini, 1999, Hak Tanggungan, Asas-Asas, Ketentuan-Ketentuan

Pokok dan Masalah yang Dihadapi oleh Perbankan (Suatu Kajian
Mengenai Undang-Undang Hak Tanggungan), Alumni, Bandung.

Soerjono Soekanto, 1986, Pengantar Penelitian Hukum, publisher of the

University of Indonesia, Jakarta.

Legislation:

The Book of Civil Law Act

The Law No. 4 of 1996 on Land and Mortgage of Goods Related to Land

The Law No. 5 Year 1960 on Basic Agrarian

The Law No. 10 of 1998 concerning Amendment to Law Number 7 of 1992

Regulation of the Minister of Agrarian Affairs / Head of National Land Agency

No. 5 of 1996 on Mortgage Register.

Directors of Bank Indonesia Decree No. No. 27/16/Kep/Dir and SEBI.

27/17/UPPB dated March 31, 1995 on Pedoman Penyusunan Kebijaksanaan
Pemberian Kredit (PPKPK).