Mortgage is a material right on immovable property which is used as collateral in debt. What are some examples of immovable objects that can be mortgaged?
Among the many categories of material collateral, the understanding of a mortgage is often confusing. There are still many who often consider land to be included in its object.
In fact, the immovable object that can be used as a mortgage object today is only a ship. Why is land no longer included? Check out the following discussion.
What is a Mortgage?
Mortgage in the KBBI has two definitions. First , a mortgage is a loan that is given on the basis of collateral in the form of immovable property. Second , is a statement of long-term debt which contains a stipulation that the creditor can transfer part or all of his claim rights to a third party.
In the legal context, as stated in Article 1162 of the Civil Code , a mortgage is a material right to immovable goods that is used as security in the repayment of an alliance.
It is important to clarify that the practice of mortgages in Indonesia is not the same as the rules of the monopoly game that we often played when we were young. Right now, his only object was the ship. Home or land mortgages cannot be made.
In Indonesia, in addition to mortgages, there are four categories of material or object guarantees as a form of debt guarantee, namely pawning, fiduciary, mortgage, and warehouse receipts. Each of these categories has different objects.
First , the pawn. Based on Article 1150 of the Civil Code, a pawn is a right obtained by a creditor on a movable property which is handed over to the creditor as collateral for his debt. Then, the creditor is authorized to take payment of his receivables and the goods.
In short, in pawning, the object that can be pawned must be movable and present when the guarantee is made, for example, jewelry owned, pieces of precious metal, BPKB for motorized vehicles, and others.
Second , fiduciary. Article 1 number 1 of the Fiduciary Law defines fiduciary as the transfer of ownership rights to an object on the basis of trust provided that the object whose ownership rights are transferred remains in the control of the owner of the object.
Fiduciary guarantees based on Fiduciary Law are security rights for movable objects, both tangible and intangible, and immovable objects, especially buildings that cannot be encumbered with mortgage rights that remain in the control of the fiduciary giver as collateral for certain settlements.
Fiduciary can also be in the form of receivables, both receivables that exist at the time the guarantee is given or which can be obtained later. Fiduciary guarantees also include the results of the object that is the object of the guarantee and the insurance claim of the object.
Third , mortgage rights. Debt collateral covered by mortgage is immovable property. However, the object is land, not other objects.
With the enactment of the Liability Act , land can no longer be the object of mortgage security. Article 4 and Article 27 of the Liability Law determine the rights to land that can be used as collateral as follows:
- Right of ownership;
- Cultivation Rights;
- Building rights;
- Right to use state land which according to the applicable provisions must be registered and according to its nature can be transferred; and
- Ownership of the Flat Unit.
Fourth , warehouse receipts. The Warehouse Receipt Law explains that warehouse receipts are documents of proof of ownership of goods stored in warehouses issued by warehouse managers.
Mortgage Object
Then what about the object of the mortgage or mortgage? As already mentioned, currently the object that can be used as a mortgage is a ship.
Widiyono , SH, MH, Sp.N., explained that Article 1162 of the Civil Code provides limitations on mortgages. The limitation is a material right of immovable property to take reimbursement thereof for the settlement of an engagement, in which ships with a weight of seven tons and over or 20 m3 in volume include examples of immovable property mortgages.
Mortgage Legal Basis
The regulations or legal basis for mortgages are regulated in the Civil Code and Shipping Law . Article 1162 of the Civil Code defines it as a material right to immovable property which is used as collateral in the settlement of an agreement.
Then, Article 1 number 12 of the Shipping Law defines a ship mortgage as a material collateral right on a registered ship to guarantee the repayment of certain debts which gives priority to certain creditors over other creditors.
Article 60 of the Shipping Law stipulates that ships that have been registered in the Indonesian Ship Registry can be used as debt collateral by placing a mortgage on the ship.
This imposition is carried out by making a deed by the registrar and the registrar of the ship's name at the place where the ship is registered. Furthermore, when the deed is issued, the mortgagee will be given one Grosse Mortgage Deed which has executive power.
The explanation of Article 60 paragraph (4) of the Shipping Law explains that what is meant by executive power is that the deed can be used by the holder as a legal basis for carrying out executions without going through a lawsuit process in court.
A ship can be burdened with more than one mortgage as stated in Article 61 paragraph (1) of the Shipping Law . Then, if there are several mortgages, as explained in Article 61 paragraph (2) of the Shipping Law , the rating of each of the mortgages is determined according to the date and serial number.
Mortgage Execution
Then, how is the execution process? Article 1178 of the Civil Code explains that when the principal debt is not repaid or there is unpaid interest, the mortgage holder has the absolute right to sell the collateral asset in public or through a public auction so that the proceeds can pay off the existing debt, both the amount of principal and interest and other costs.
Furthermore, explained by Almaida Askandar , Founder of IABF Law Firm, in terms of execution, mortgage holders can take efforts to fulfill debt payments through the litigation process in two ways. The first way is to withdraw the debtor as a defendant to the District Court.
However, this litigation step is considered ineffective because it requires a long time and long stages, starting from the stage of reading the lawsuit, answering, replicating, duplicating, proving, and others. Not to mention the opportunity for legal appeals, cassation, and review of court decisions.
The second way is to submit a request or request for execution to the district court. As stated in Article 60 of the Shipping Law , the deed has executive power. In other words, if the debtor violates the agreement or breaks the contract, the mortgage holder can request fiat execution to the Head of the local District Court in four stages.
The first stage, the court will issue a warning letter or aanmaning . The second stage is the determination of the execution confiscation. The third stage is the determination of the auction. In determining the auction, auction sales can be carried out based on their own power. This step can be taken if the mortgage deed contains the power to sell the collateral itself without court intervention if the debtor breaks his promise. The fourth stage, underhand sales. This last step is carried out based on the agreement of the creditor and debtor to find the highest purchase price.
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