The Practice of Letter of Attorney in Land Sales

R. Murjiyanto, Erna Sri Wibawanti, Muhammad Ramadhan

Janabadra University, Yogyakarta, Indonesia

Keywords: Power of Attorney sell- Sale and Purchase of Land- Sales and Purchase Agreement - the notary -legal

protection

Abstract: The research with the title the Practice of Letter of Attorney in Land Sales is a normative study conducted in

Bantul Regency by taking resource persons of Notary-Conveyor in the Bantul Regency. The results of the

study were analyzed descriptive-qualitatively. Based on the results of the research, there were several reasons

for making a power of attorney to sell in land sales was because the requirements for the sale and purchase of

Land Title Deed are not complete but the price has been paid in full, or because the seller cannot attend the

sale certificate before Land Deed Official (Conveyancer/PPAT). Therefore, in order to provide a guarantee

to the buyer, a Sales and Purchase Agreement is made which is accompanied by a Power of Attorney of

Selling. The seller cannot attend directly to sign the sale and purchase deed before the Land Deed Official

and also because the purchased land will be sold to another party. The power of attorney to sell relating to the

Sales and Purchase Agreement is included in the Sales and Purchase Agreement deed whose purpose is to sell

to himself (recipient of the power of attorney) as the buyer who has already settled, while the ordinary power

of attorney is made separately to sell to other people who are basically intended to represent seller for various

reasons the seller cannot attend to sign the sale and purchase deed directly before the Conveyancer. The legal

strength of the power of attorney to sell with paid off within Sales and Purchase Agreement Lunas is strong,

because the power of attorney to sell is basically to provide legal protection to the recipient of the power of

attorney, that is, the buyer who has paid in full the land price, so that the sale and purchase has already

occurred. Whereas the power of attorney to sell to other people is basically really intended to represent the

seller, the risk resulting from the sale and purchase remains the responsibility of the seller.

1 INTRODUCTION

The transfer of rights in the form of buying and selling

land is a form of transfer of land rights that is mostly

carried out by the community. Land sales is one of the

legal actions that must be carried out by making a sale

and purchase deed by the Conveyer as stipulated in

Article 37 of Government Regulation Number 24 of

1997 which states that the transfer of land rights and

ownership rights to apartment units through buying

and selling, exchange, grants, income in the company

and other legal deeds of transfer of rights, except the

transfer of rights through auction can only be

registered if proven by a deed made by the authorized

Conveyancer according to the provisions of the

applicable legislation.

Sometimes the land sales cannot be carried out

properly due to various reasons, such as the price has

not been paid in full or there are requirements that

have not been fulfilled. Nevertheless there are also

other reasons why buying and selling is not done as it

should, namely through a sale and purchase deed by

Conveyancer.

If the sale and purchase cannot be carried out

according to the applicable provisions, namely with

the Conveyancer deed, what is often done is to make

a deed of the Sale and Purchase Agreement (PPJB).

There are two kinds of PPJB, namely PPJB Lunas, in

the sense that land prices have been paid in full but

there are other requirements that have not been

fulfilled and PPJB has not been paid off. In the PPJB

paid off accompanied by a Selling Power of Attorney.

The power of attorney to sell will be used by the buyer

for the buying and selling process before

Conveyancer. Selling Power of Attorney which will

be used by buyers for the sale and purchase process

by Conveyancer, without having to be present the

buyer is often made for various reasons. Therefore

this research was conducted to find out the reason for

making the Selling Power of Attorney and the legal

force of the power of attorney to sell it. Power of

attorney to sell can be defined, as the power of

Murjiyanto, R., Sri Wibawanti, E. and Ramadhan, M.

The Practice of Letter of Attorney in Land Sales.

DOI: 10.5220/0009203600210025

In Proceedings of the 2nd International Conference on Applied Science, Engineering and Social Sciences (ICASESS 2019), pages 21-25

ISBN: 978-989-758-452-7

attorney from the owner of the goods to another party

as the recipient of the power of attorney, to sell certain

items owned by the owner of the goods, including

doing actions in the interest of selling the goods.

(Setyawan, 2016)

In this study based on the problems: How does the

form of power of attorney sell related to PPJB and

power of attorney that are usually not related to

PPJB? The method used is to use normative research

methods that are supported by empirical data, namely

research based on secondary data by reviewing

various laws and regulations as well as books,

journals as well as writings relating to Selling Power

of Attorney, sales deed documents.

2 RESULT AND DISCUSSIONS

2.1 Reasons for Making Power of

Attorney of Selling

Land buying and selling according to national

agrarian law that uses the basis of customary law is

buying and selling that is cash, clear and real. Cash

means that delivery of rights by the seller to the buyer

is carried out together with the payment of the price

by the buyer. With this act, the right to change was

immediately implemented. Prices paid at the time of

delivery do not have to be paid off, the remainder will

be considered as debt from the buyer to the seller who

is subject to the debt payable law. Real nature means

that the intention or intention spoken must be

followed by a real action to show the purpose of the

sale and purchase, while Clear means that the legal

act must be carried out before the Conveyancer as a

sign that the act does not violate applicable law,

means to be carried out openly, clearly the object and

subject of the owner, complete letters and proof of

ownership (

SW and Sumardjono, 1993)

The process of buying and selling land according

to national agrarian law, in addition to the agreement

regarding prices and goods (land), a deed must be

made by Conveyancer. Sometimes the buying and

selling process before Conveyancer cannot be done

yet, because there are some requirements that have

not been fulfilled, such as the price has not been paid

in full, or there are other requirements documents that

do not yet exist. Therefore, before the sale and

purchase process with the sale and purchase deed

made by the Conveyancer was carried out, the parties

entered into a sale and purchase agreement (PPJB).

In practice, many people execute the land sales,

which are one of the legal actions related to land

rights in cash or in full, are made more often using a

Sale and Purchase Agreement (PPJB) due to various

factors or reasons. (Kurniawati, 2018)

Sale and Buy Agreement is made to temporarily

bind before making AJB officially before the Land

Deed Making Officer (Conveyancer). In general, the

contents of the PPJB are the agreement of the seller

to bind themselves to sell to the buyer accompanied

by the giving of a sign or advance based on the

agreement. There are two kinds of Sale and Buy

Agreement (PPJB), namely PPJB Lunas, in the sense

that the land price has been paid in full, but there are

requirements that have not been fulfilled, so that the

land price has not been paid in full. Sale and Purchase

Agreement.

Some of the reasons for using Power of Attorney

of Selling in buying and selling land are:

a. The price of land has been paid in full, but the

requirements for making a sale and purchase deed

are not complete. Therefore, because the price has

been paid in full, then in order to provide a

guarantee to the buyer, a Sales and Purchase

Agreement (PPJB) is made which is accompanied

by a Selling Power of Attorney. With this power

of attorney, then when all the requirements have

been fulfilled, without the need for the presence

of the seller because it has been represented by

giving power, with the power of attorney to sell to

the buyer, the PPAT can immediately make the

Sale Deed to process the name of the certificate.

The Power of Selling is intended to provide

protection for buyers who have paid the price of

the land in full. Basically the power of attorney to

sell aims to simplify the work of the Notary if the

seller cannot attend to sign the deed of sale due to

certain reasons. In addition, the purpose of using

the power to sell is to protect the interests of the

parties from things that are not desirable, for

example a broken promise from one of the parties.

With the power to sell it becomes a kind of

juridical safeguard in protecting the interests of

the parties who make it. (Meiliyanza, 2016) The

granting of the power of sale in the binding deed

of sale and purchase is not included in the

meaning of absolute power which is prohibited

because the power of attorney is made in order to

perpetuate a valid causal agreement, and legal

actions referred to in the power of sale are not for

the power of attorney but for the benefit of the

power of attorney, which is the release of legal

obligations by the power of attorney as the seller

to the power of attorney as the buyer because the

price has been paid in full. (Latumenten, 2003).

The deed of power to sell is not an absolute power,

ICASESS 2019 - International Conference on Applied Science, Engineering and Social Science

absolute power is an irrevocable power, the term

absolute power is not a legal term, in the sense that

there is no strict arrangement regarding that right.

To be able to understand the true meaning of

absolute power, it must be interpreted

etymologically (Andasasmita. 1991).

b. The seller cannot attend directly to sign the sale

and purchase deed before the Land Deed Maker

Officer (Conveyancer).

A power of attorney to sell is made if the buyer

does not want to directly attend himself to sign the

sale and purchase deed before the Land Deed

Maker Officer (Conveyancer), so as to empower

other people to represent him. But there are times

when there are other reasons, because the land

purchased will be sold to another party. This is

done with the aim of avoiding taxes and also the

double / twice transfers of rights. This is usually

done by developers or buyers whose profession is

buying and selling land / houses. They buy land

and have been paid in full and all the requirements

for buying and selling have been fulfilled, but do

not want to buy and sell as they should because

they do not want to pay taxes, especially the Land

and Building Rights (BPHTB) fees and the cost of

making a Deed of Sale and Purchase and transfer

of rights. Therefore PPJB Lunas is made with a

Selling Power of Attorney, so that later those who

will pay taxes and transfer fees are when buying

and selling to new buyers. Still according to the

resource person, even in the form of PPJB, the

land office requires proof of income tax (PPh),

this is to avoid PPJB being used as a way to avoid

taxes. The income tax paid is income tax on a sum

of money from the value of the transaction that

has been paid, not the overall price. But if it has

been paid in full, it means that the income tax that

must be paid is calculated from the total value of

the transaction price as a whole. Whereas for

BPHTB that must be paid by the buyer will be

paid during the process of making AJB. So with

this Power of Attorney Selling a new BPHTB will

be charged when making a Deed of Sale before

PPAT, for the production of PPJB BPHTB not yet

paid.

This power to sell can be entered as a clause in the

PPJB, it can also stand alone, in the form of a separate

deed. So, when signing, signed two deeds: PPJB and

the Deed of Power to Sell. In the event that the power

to sell is entered as a clause in the PPJB, the PPJB

deed will only be signed. There are two types of

power of attorney to sell, namely a power of attorney

to sell to himself (the recipient of the power of

attorney), and the power to sell to another party. The

power of attorney to sell to itself is usually related to

PPJB while an ordinary power of attorney, in the

sense that the power to sell to another person is not

related to PPJB.

The power to sell to oneself can be a part of the

PPJB, it can also be a separate deed of authority. If

the power to sell Kediri itself is made in its own deed,

then when the rights are transferred at the land office,

the PPJB must be included. To distinguish ordinary

power of attorney from the power of attorney to sell

to oneself is the editorial sentence. For the power of

attorney to sell to oneself the sentence used is "sell to

the recipient of the power of attorney", while the

usual power of attorney reads "giving power to and

on behalf of the authorizer to sell to anyone".

In the event that the selling power is separately

made with the PPJB, then when registering the sale

deed to the Land Office, the PPJB must be

accompanied. Because basically the power of selling

is made based on PPJB which has paid off, so that

both are interconnected and inseparable. This is to

avoid misuse of the selling power, for example, for

example, the power of attorney is used to make a sale

and purchase deed, which the buyer is different from

the buyer listed in the PPJB. This can cause legal

problems in the future, including can be used for

irregularities in the tax field.

In the case of the seller or the buyer acting through

a power of attorney, then there must be a special

power to sell. General power, which is usually only

for management action does not apply to selling. The

power must be firm in selling the land sold. The form

of power must be written, verbal power cannot be

used as a basis for buying and selling land. The

written power of attorney is also at least legalized (by

a Notary / Registrar of District / State Representatives

abroad) (Wicaksono and Sugiarto, 2009).

However, the special power of attorney is

different from the absolute power of attorney as stated

in the Instruction of the Minister of Home Affairs on

March 6, 1982 Number 14 of 1982 jo. Supreme Court

Jurisprudence dated April 14, 1988 number 2584 K /

Pdt / 1986 which affirmed that absolute power,

regarding the sale and purchase of land, cannot be

justified because in practice it is often misused for

smuggling buying and selling of land.

Authorization to sell is of the nature or type of

special power of attorney because it only concerns

one particular interest or more, the contents of which

are clearly and explicitly stated regarding acts or legal

actions authorized by the recipient of the power of

attorney.(Zainudin, 2017)

The Practice of Letter of Attorney in Land Sales

1.2 Legal Protection using Power of

Attorney of Selling for Buyers

Protection of buyers who have paid off and made

using PPJB, besides being carried out with conditions

must be followed by making irrevocable power-

giving clauses. The point is that if the seller does not

fulfill it, the buyer can sue and request compensation

in accordance with the agreement stipulated in the

sale and purchase agreement.

The Selling Authorization contained in the PPJB

Lunas deed is absolute, meaning that it cannot be

revoked and will not end due to the reasons set out in

Article 1813 of the Civil Code. This is to ensure legal

certainty for buyers who have paid in full the price

they have paid in full but cannot yet be implemented

because of one thing or another there are conditions

that have not been fulfilled. It should also be noted

that, if the power to sell this an inseparable part of

PJB is complete, then in the event the said PJB

certificate is completely signed without any

erroneous, coercive or fraudulent elements, then the

PJB process is complete, which continues to be AJB

and comes back the name of the certificate, it is

already running as it should.

A power of attorney to sell, subject to the

regulation of power of attorney in article 1792 -

article 1819 of the Civil Code Law (KUHPer). In

these articles, there is no regulation regarding the

period of validity of a power of attorney. So, the

validity period of a power of attorney depends on the

agreement of the parties, in accordance with the

principle of freedom of contract in article 1338 of the

Civil Code Law (KUHPer).

Authorization to sell is of the nature or type of

special power of attorney because it only concerns

one particular interest or more, the contents of which

are clearly and explicitly stated regarding acts or legal

actions authorized by the recipient of the power of

attorney. It should be noted that the prohibition on

absolute power of attorney, namely a power of

attorney containing the element "cannot be

withdrawn by the authorizer". In accordance with

article 1813 of the Civil Code Law (KUHPer), one of

the reasons for the termination of power of attorney is

if the authorization withdraws its power. This

absolute power ban was strengthened in the

Instruction of the Minister of Home Affairs No. 14 of

1982 concerning Prohibition on the Use of Absolute

Authorities as the Transfer of Land Rights.

The deed of power to sell is not an absolute power,

absolute power is an irrevocable power; the term

absolute power is not a legal term, in the sense that

there is no strict arrangement regarding that right. To

be able to understand the true meaning of absolute

power, it must be interpreted etymologically

(Andasasmita. 1991). From the contents of the Power

of Attorney mentioned, the Power of Attorney can be

categorized as a General Power of Attorney or an

Absolute Power of Attorney, because the object is

very broad. Instruction of Minister of Home Affairs

No. 14 of 1982, in the second part, describes the

definition of Absolute Power of Attorney, namely:

a. Absolute Power is the power in which

the element of irrevocability is given by the

authorizer.

b. Absolute Power is the transfer of

rights to land that gives authority to the recipient

of the power to control and use the land and to

do all legal actions that according to the law can

be carried out by the right-holders.

In practice, this type of Absolute Power of

Attorney is prohibited from being used in the process

of transferring land rights / sale and purchase of land,

as stipulated in the Instruction of Minister of Home

Affairs No. 14 of 1982 aimed at regulating public

order in the transaction of sale and purchase of land.

Letter c, considering that the Instruction states: The

purpose of the prohibition is to avoid misuse of the

law which regulates the power of attorney by holding

the transfer of land rights in a covert manner using the

form of "absolute power". Such action is one form of

legal action that interferes with efforts to control land

status and use.

Even though the power of attorney to sell is

irrevocable, the authorization to sell in the binding

deed of sale and purchase is not included in the

meaning of absolute power which is prohibited

because the power of attorney is made in order to

perpetuate an agreement with a valid causal, and legal

actions referred to in the power of sale, not for the

interests of the power of attorney, but for the interests

of the power of attorney, which is the implementation

of legal obligations by the power of attorney as the

seller to the power recipient as the buyer because the

price has been paid in full (Latumenten, 2003). It

becomes a fair thing if someone has paid in full the

price of land to get protection with the power of

attorney to sell it.

Basically the responsibility in fulfilling the rights

and obligations in the power of attorney becomes the

responsibility of the principal which is in this case the

attorney acts for and on behalf of, and represents the

principal. An attorney does a business not for himself,

but for the interest of the person he represents, who is

the true owner of the interest. That means the legal

actions carried out by the attorney are the legal

actions of the principal (Adnyana, 2015). In theory,

ICASESS 2019 - International Conference on Applied Science, Engineering and Social Science

the power to sale is the delegation of some or all of

the authority that is in the power of attorney to the

person who receives power in the event and / or to

carry out legal actions to transfer the right to land

owned by the authority (Zainuddin, 2017).

3 CONCLUSIONS

From the results of the analysis and discussion of the

problem of using the power of selling in land sale and

purchase, several conclusions can be drawn as

follows:

1. The power of attorney to sell relating to PPJB is

included in the PPJB deed which aims to sell to

himself (the recipient of the authorization) as the

buyer who has already settled, while the

ordinary power of attorney is made separately to

sell to others which is basically really intended

to represent the seller for various reasons

because the seller cannot attend to sign the deed

of sale directly before the Land Deed Maker

Officer (Conveyancer).

2. The legal strength of the power of attorney to

sell with PPJB Lunas is strong, because the

power of attorney to sell is basically to provide

legal protection to the recipient of the power of

attorney, i.e. the buyer who has paid the land

price in full, so that the sale and purchase has

already occurred, and therefore it is natural that

the power of attorney to sell is irrevocable.

Whereas the power of attorney to sell to other

people is basically intended to represent the

seller, for various reasons, the seller cannot

attend to directly sign the sale and purchase deed

before the Land Deed Maker Officer

(Conveyancer), so that the authority of the

authorized person is only to sign the deed of sale

buy before Conveyancer. Against the risks

resulting from the implementation of the sale

and purchase remains the responsibility of the

seller.

REFERENCES

Alfis Setyawan, Tinjauan Yuridis Penggunaan Surat Kuasa

Jual Terhadap Penjualan Objek Hak Tanggunga

Dalam Penyelesaian Kredit Macet, Jurnal Cahaya

Keadilan. Vol 4. No 1 2016, pp 6

Maria SW, Sumardjono, 22 Juli 1993, Aspek Teoritis

Peralihan Hak Atas Tanah, makalah seminar

“Peralihan Hak-Hak Atas Tanah, Aspek Hukum dan

Segi Praktek yang Aktual Dewasa ini”, Yayasan Biluta

dan Kantor Chandra Motik Djemat & Associates,

Jakarta

Leny kurniawati, Akta Perjanjian Pengikatan Jual Beli Dan

Kuasa Menjual Sebagai Bentuk Perlindungan Hukum

Terhadap Pembeli Hak Atas Tanah, JURNAL

HUKUM dan KENOTARIATAN, Volume II – Nomor

1– Februari 2018, pp 5

Meiliyanza, 2016, Kedudukan dan Fungsi Akta Kuasa

untuk Menjual dalam Perjanjian bagi Bangun, Jurnal

Sriwijaya Law Review, pp 23

Pieter E. Latumenten, Kuasa Menjual dalam Akta

Pengikatan Jual-Beli lunas tidak termasuk Kuasa

Mutlak, Jurnal Renvoi, Jakarta, Edisi September 2003,

pp 36

Komar Andasasmita. 1991, Notaris II, Contoh Akta Otentik

dan Penyelesaiannya. Ikatan Notaris Indonesia Daerah

Jawa Barat, Bandung, pp 470

Frans Satriyo Wicaksono dan Agung Sugiarto, 2009,

Panduan Lengkap Membuat Surat-Surat Kuasa,

Jakarta, Visimedia, pp 84

Asriadi Zainudin, 2017, Kedudukan Hukum Surat Kuasa

Menjual Terhadap Objek Jaminan yang dibebani Hak

Tanggungan, Jurnal Al Hidayah, Vol 1 Nomor 2, pp

309

Komar Andasasmita. 1991, Notaris II, Contoh Akta Otentik

dan Penyelesaiannya. Ikatan Notaris Indonesia Daerah

Jawa Barat, Bandung, pp 470

Pieter E. Latumenten, Kuasa Menjual dalam Akta

Pengikatan Jual-Beli lunas tidak termasuk Kuasa

Mutlak, Jurnal Renvoi, Jakarta, Edisi September 2003,

pp 36

Adnyana, Penggunaan Kuasa Menjual Didalam Peralihan

Hak Milik Atas Tanah Melalui Jual-Beli, Jurnal

Magister Hukum Udayana, Vol. 4, No. 1, pp 184

Asriadi Zainuddin, Kedudukan Hukum Surat Kuasa

Menjual terhadap Objek Jaminan yang Dibebani Hak

Tanggungan, Jurnal Al-Himayah Volume 1 Nomor 2

Oktober 2017, pp 303

The Practice of Letter of Attorney in Land Sales