Selling inherited land is not a decision that can be made unilaterally. A common misconception is that if a land certificate is in one heir’s name—often a parent—it becomes their sole property. In reality, the ownership status of inherited land is governed by inheritance law, including provisions from the Burgerlijk Wetboek (BW) and Islamic law in Indonesia.
Inherited Land as Joint Property
A typical case involves land registered under the mother’s name, but acquired during her marriage to the now-deceased husband, without a prenuptial agreement in place. In this situation, the land is presumed to be joint marital property (harta bersama). When one spouse passes away, half of the joint property becomes part of the inheritance, which must be distributed to the legal heirs according to inheritance law.
Even if the land certificate bears only the mother’s name, this does not automatically make her the sole legal owner. The portion belonging to the deceased remains the right of the heirs, and any decision to sell must involve the consent of all legal heirs.
Legal Basis for Heir Consent
Article 832(1) of the BW states:
“By law, those entitled to be heirs are blood relatives, both legitimate and illegitimate according to the law, and the surviving spouse.”
This confirms that all heirs—spouse and children alike—have rights to the deceased’s estate, including any land classified as joint property.
If land is sold without the agreement of all heirs, the transaction is considered unlawful. It is regarded as the sale of someone else’s property, which violates Article 1471 of the BW:
“The sale of someone else’s property is null and void and may entitle the buyer to claim compensation for costs, losses, and interest, if they were unaware that the item belonged to someone else.”
In other words, selling inherited land without full heir consent renders the transaction void.
Civil Law Consequences
When a sale is declared null and void:
- The transaction is treated as though it never occurred.
- Ownership of the land remains with the legal heirs.
- The buyer, if unaware of the true ownership status, may file a claim for damages or seek compensation.
This legal principle is reinforced by Supreme Court Decision No. 82 K/PDT/2004 (Putusan Mahkamah Agung No. 82 K/PDT/2004) dated May 22, 2007:
“A sale and purchase agreement of inherited land is legally void if conducted without the consent of the other heirs because the inheritance estate has not been divided/separated.”
Criminal Law Consequences
Beyond civil liabilities, there may also be criminal penalties for selling inherited land without proper authority:
1. Embezzlement – Article 372 of the Criminal Code (KUHP)
“Anyone who intentionally and unlawfully takes possession of an item wholly or partly belonging to someone else shall be punished for embezzlement, with a maximum imprisonment of 4 years.”
2. Forgery – Article 263 of the Criminal Code (KUHP)
If the sale involves forged signatures or documents:
“Anyone who creates or uses a forged document as if it were genuine—causing rights or obligations and resulting in loss—shall be punished with up to 6 years of imprisonment.”
Conclusion
Selling inherited land without the written consent of all heirs is not only legally invalid, but also carries serious civil and criminal risks. To avoid disputes or legal consequences:
- Always verify the legal status of inherited land.
- Involve all legal heirs in the decision-making process.
- Avoid acting unilaterally, especially if the estate has not been formally divided.
If you are dealing with disputes over inherited property, it is strongly recommended to consult with a qualified legal advisor or notary to ensure all actions comply with inheritance law and protect the rights of all parties involved.