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VOL. 9, ISSUE 4 (2023)
Analyzing the juridical of violating article 1868 kuhperdata in the preparation of deed of mortgage by Notary’s
Authors
Safira Nurul Fatia, Sanusi, Husnaina Aflinda
Abstract
According to Article 15
paragraph (1) of the Land Deed Law (UUHT), the Deed of Mortgage with Power of
Attorney (SKMHT) must be made through a notarial deed or a PPAT deed. Notaries
and PPATs are two different positions with distinct authorities. When creating
a deed, a Notary must comply with the provisions of the National Land Agency
Law (UUJN), while a PPAT must adhere to the provisions of BPN Regulation No. 8
of 2012. Based on Article 1868 of the Civil Code in conjunction with Article 1
number 7 of the UUJN, one of the requirements for an authentic deed is that its
form must be determined by law, and in this case, for Notarial deeds, the form
is determined by the UUJN. However, in practice, there are land offices that
require notaries to follow the format of BPN Regulation No. 8 of 2012 when
preparing SKMHT. The research utilizes legal approaches including statutory
approach, conceptual approach, and case approach. The legal materials used in
this study are secondary data consisting of primary legal sources, secondary
legal sources, and tertiary legal sources. The results of this study indicate
that there is a contradiction between the form of SKMHT based on BPN Regulation
No. 8 of 2012 and SKMHT based on Article 38 of the UUJN. This contradiction
arises because there are several required provisions stated in Article 38 of
the UUJN that are not included in the SKMHT deed based on BPN Regulation No. 8
of 2012. Furthermore, the study shows that SKMHT made through a Notarial deed
that does not fulfill the elements stated in Article 1868 of the Civil Code in
conjunction with Article 38 of the UUJN will downgrade the SKMHT to a private
deed. It is recommended for the Land Office not to reject SKMHT made through
Notarial deeds following the form specified in Article 38 of the UUJN. It is
advised for notaries to create SKMHT in accordance with the form and procedures
established by the UUJN to ensure the full evidentiary strength of the SKMHT.
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Pages:45-46
How to cite this article:
Safira Nurul Fatia, Sanusi, Husnaina Aflinda "Analyzing the juridical of violating article 1868 kuhperdata in the preparation of deed of mortgage by Notary’s". International Journal of Law, Vol 9, Issue 4, 2023, Pages 45-46
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