Original Citation: 2004 ETLJ 6
Law No 01 of 2003 on the Juridical Regime on Immovable Properties was approved by the National Parliament of East Timor on 03 December 2002, promulgated by the President on 24 December 2002 and published on 10 March 2003. It came into force on 11 March 2004 virtue of Article 20 which provides that “[t]he present law enters into force on the following day of its publication.”
It is the first legislation enacted by the National Parliament pertaining to immovable properties.
It deals with the following matters:
1. the definitions of immovable property, private domain immovable property, public domain immovable property, and the State’s private immovable property;
2. illegal appropriation and illegal occupation of immovable property;
3. administrative eviction from the State’s immovable property;
4. claims to immovable property owned by citizens and foreigners;
5. the administration of abandoned immovable property; and
6. past acts relating to State’s immovable properties.
General Definition of Immovable Property
For the purposes of the Law on Immovable Property, “immovable properties” are defined as “urban and rural buildings and their integral parts”. “Integral parts” is defined as “every movable object materially and permanently attached to the building” .
Definition of Private Domain Immovable Property
Article 2 defines “Private Domain Immovable Property” as “rural and urban buildings that can be the subject of juridical business and whose owners are private national persons, singular, collective, or the State.”
Definition of Public Domain Immovable Property
Article 3.1 defines “Public Domain Immovable Property” as immovable properties that “fall outside legal business and which, by their nature, are insusceptible to individual appropriation.”
Article 3 also provides that the minerals contained in the soil and sub-soil shall be regulated separately.
Definition of the State’s Private Immovable Property
Article 4.1 defines the State’s Private Immovable Property as:
“a) All immovable properties owned by the Portuguese State on the 7th of December 1975; and
b) Immovable properties acquired by the State by virtue of law or legal transaction.”
Other provisions pertaining to the immovable property of the East Timorese State are contained in Article 16.1 which provides that “any acts of alienation of the Portuguese State’s immovable patrimony between 7 December 1975 and 19 May 2002; namely, those effected by the Indonesian State, shall be considered non-existent”. Article 16.2 further provides that “[i]mmovable properties acquired or built by public entities within the period referred to in the previous paragraph [7 December 1975 and 19 May 2002], shall automatically revert to the State.” The rights of bona fide third parties in respect of properties the subject of paragraph 2 of Article 16 who may have onerously acquired the respective properties for a fair price are safeguarded, with the State being the creditor of the outstanding balance for its acquisition in cases where payment had not been made in full.
Article 4.2 also provides for the disposal of the State’s private immovable properties, which disposal is also to be regulated by a Decree-Law.
Article 5.1 provides that “[a] person who has benefited or occupied an immovable property of the State, claiming it to be his or her property and who has obtained title to it as payment for a favor or through fraudulent means, commits the criminal offense of illegal appropriation of an immovable property.”
Article 5.2 provides that “[a] person who has illegally appropriated another person’s immovable property is liable to punishment, in a competent court, of a fine of between 30 and 180 days, each day of the fine being equivalent to an amount ranging from one and two hundred American dollars calculated taking into account the offender’s economic situation.” If the fine imposed under paragraph 2 of Article 5 is not paid, then the offender is liable to forced community labour “for a corresponding period of time.” If the offender does not comply with the imposition of community labour, then a prison sentence may be imposed “for an equal period of time is to be served, provided that at all times, the offender is able to avoid serving the sentence, totally or in part, by paying the fine or providing labour in favour of the community.” .
An illegal occupant may avoid prosecution by vacating the property or by regularising the illegal occupation within 30 days of being given notice that he or she is an illegal occupant by the Directorate of Land and Property.
Legal proceedings in connection with the crime of illegal appropriation of an immovable property do not prejudice “any other judicial or administrative proceedings for the restitution of profits collected from third parties and unduly received by the offender for the use of the immovable property.”
Paragraph 6 of Article 5 provides that “in no case shall preventative imprisonment be imposed”.
Article 6 deals with illegal occupation. “Illegal occupation” is defined in paragraph 1 of Article 6 as “the act of someone using someone else’s immovable property or of acting as its possessor against the will of the owner.” “Possession” is defined in paragraph 2 of Article 6 as “the power that is manifested when someone acts in a way that corresponds to the exercise of the right of ownership or any other real right” Paragraph 2 of Article 6 further provides that “possession can be exercised by the holder of the right or through someone else.”
Illegal occupation is “punishable by a fine of 30 to 90 days, at a fixed daily rate of between a minimum of fifty cents and a maximum of One Hundred American dollars calculated taking into account the offender’s economic situation and in a way that, within the fixed limits, the amount constitutes a penalty commensurate with the offender’s degree of culpability.” . This fine can not be converted into imprisonment but failure to pay can result in the “seizure and execution of the offender’s goods as necessary for the liquidation of the outstanding fine.” Paragraphs 5 and 6 of Article 5 are deemed to apply to illegal occupation so an illegal occupant who vacates the property or regularises the illegal occupation with the lawful owner is not liable to prosecution if vacation or regularisation is effected within 30 days of being notified that the occupation is illegal and preventative imprisonment can not be imposed on an offender.
Paragraph 6 of Article 6 provides that “[t]hird parties are not considered to be illegal occupants when they have verifiably acted in good faith.”
Administrative Eviction from the State’s Immovable Properties
Chapter III regulates administrative eviction from the State’s immovable properties. Once the Directorate of Land and Property (DTP) has identified an immovable property of the State that is illegally occupied or that has been illegally appropriated, then DTP must notify the occupants of such fact and order them to vacate it within a time limit of 30 days. The illegal occupants are thereafter liable to administrative eviction “without prejudice to the proceedings corresponding to the liabilities provided for in [chapter II on illegal appropriations] .
Illegal occupants that have been so notified by DTP have the right to lodge a written appeal to the Minister of Justice with time limit of 10 days counted from the date of the notification. This appeal is deemed to be dismissed if there is no response from the Minister the time limit of 15 days counted from the date of its submission.
Article 8 confers on DTP the power to proceed with administrative eviction upon the lapse of 30 days from the date of notification to the illegal occupants and may resort to police force if necessary.
While the illegal occupant may lodge an appeal to the Courts against the administrative proceedings for eviction (see further Article 10 below on the procedures relating to the appeal process), any such appeal does not have the effect of suspending the eviction
All expenses relating to the administrative eviction are borne by the evictee, and DTP must send to the Office of Public Prosecution “a certificate of the amount expended for the seizure and execution of the evictee’s goods, in an amount that permits the respective payment.”
Administrative eviction does not confer any right to indemnity or any compensation for constructions or improvements undertaken on the immovable property.
Article 9 provides that “[a]dministrative eviction does not prejudice the rights acquired by bona fide third parties.”
Judicial Appeal against Administrative Eviction
Under Article 10, administrative eviction can be appealed against to the courts within the time limit of 30 days from its execution. The court competent to hear the appeal is the one in the location of the immovable properties in question. The legal expenses of proceedings are determinable by the court in an amount varying between fifty and five hundred American dollars, as long as the Code on Judicial Costs has not been approved and entered into force.
Article 11 sets out the procedures relating to the appeal.
The petition must state the the facto and de jure grounds for the appeal and contain a clear and precise formulation of the application and must also include the documents confirming the act the subject of the appeal, and all supporting documents.
Once the appeal is submitted, the Judge can invite the appellant to correct any deficiencies in the petition.
If the judge is of the opinion that there is” no illegitimacy of the parties, extemporaneousness (that is, that the appeal has not been lodged outside the permitted time period for appeal) or manifest illegality of the appeal, the judge must order “the dispatch of copies to the Ministry of Justice so that it can reply within the time limit of 30 days if it so wishes.”
Upon either the receipt of a reply from the Ministry of Justice, or if the prescribed period for reply has lapsed, if the appeal affects the rights of third parties, then the judge must summons such third parties to reply within the time limit of 15 days.
Once any replies to such summons have been received or upon the lapse of the prescribed time periods, the judge can request any documents that he or she deems necessary or must notify the parties to present them. Thereafter, “the proceedings continue for a time limit of forty eight hours, with the knowledge of the Office of Public Prosecution, and a decision pronounced in 15 days.”
Lodgment of Claims by Citizens to Immovable Properties
Article 12 provides that national citizens whose immovable properties have been illegally appropriated or occupied by third parties must present their claims in relation to their right of property over those goods to DTP, along with supporting evidence, “within one year from the entry into force of the present law, in order to activate mediation procedures or administrative restitution of the respective property titles under the terms that will be established by law.”
Unclaimed private immovable properties and those without identified owners are presumed to be State property. This presumption can be contested through a judicial appeal which must be submitted by 31 December 2008. The claims and the judicial appeal provided for in Article 12 do not prejudice the owner’s right to present, in the competent civil court, a case for appropriate compensation.
Lodgment of Claims by Foreigners to Immovable Property in East Timor
Article 13 provides that foreign citizens must, within the period of one year counting from the date of entry into force of the ... law, provide all information about the immovable properties of which they were the proprietors as at 19 May 2002 for the purposes that will be established by law. If such claims are not lodged within the one-year time period or are not accompanied by “all corresponding means of evidence” then the properties shall be presumed to be in a state of abandonment and revert to the State.
Article 13.3 provides that “[a]ny acts of disposal of immovable properties carried out by foreign citizens after 20 May 2002 are non existent.”
Mandatory Reporting by DTP to the Public Prosecutor of Illegal Appropriations and Illegal Occupations
By Article 14, for the purpose of initiating the criminal proceedings referred to in articles 5 and 6 of the Law on Immovable Properties, DTP must inform the Public Prosecutor of any appropriations and occupations that it is aware of by virtue of the claims submitted under articles 12 and 13 of the law. In addition, appropriations and occupations of immovable properties of the State that DTP is unofficially aware of must also be communicated to the Public Prosecution Services. Failure to report such appropriations and occupations is a serious disciplinary offence.
Temporary Administration of Abandoned Immovable Properties owned by Citizens and Foreigners
Abandoned immovable properties that are owned by national or foreign citizens, are to be temporarily administered by the State. The temporary administration of the immovable properties is intended to:
a) Safeguard the legitimate rights of the citizens who own them;
b) Temporarily concede their use to third parties or the State itself; and
c) Ensure that they are used without detriment to their social function.
The leasing of the immovable properties to national or foreign citizens “and to singular or collective persons, is permissible in return for payment of an adequate rent”. The regulation of the leasing and administration provided for in the paragraphs 1 and 2 of Article 15 is to be regulated by Decree-law.” .
By Article 17.1, the entity that has responsibility of the administration of the Law on Immovable Properties is DTP which is an administrative unit under the Ministry of Justice.
Article 17.2 further provides that, “[u]ntil the entry into force of the legal instruments relating to the registration of buildings and buildings cadastre, DTP is the competent entity to proceed with the registration of immovable properties and elaborate the respective cadastre.
DTP is obliged, by paragraph 3 of Article 17, to submit the draft legal instruments referred to in the paragraph 2 of Article 17 (registration of buildings and a buildings cadastre), a legal instrument that regulates the provisions in Article 15 (on the leasing of abandoned properties) as well as the organic law relating to DTP.
Counting of Time
The time limits provided for in the Law on Immovable Properties are to be counted in consecutive days, and counting begins the day following that of the event. In the case where the end of the time limit does not fall on a working day, it shall be transferred to the first following working day.
Article 19 repeals all legislation that is contrary to the Law on Immovable Properties. As with any repeal provision of this general nature that does not precisely identify the legislation that is contrary to the new law, a certain level of uncertainty and difficulty in ascertaining what laws no longer apply is introduced. A much greater effort should be made by drafters to determine exactly what legislation is being repealed. It is not plausible to plead a language or technical barrier to ascertaining what provisions of either UNTAET or applicable Indonesian law are affected by the new legislation. A thorough search and careful examination of the Indonesian legislation database by the Indonesian-qualified East Timorese lawyers would have revealed what Indonesian laws were contrary to the new Law on Immovable Properties.
Warren L. Wright BA LLB
Dili, 11 April, 2004
Saturday, 19 May 2012
AN OVERVIEW OF THE PROVISIONS OF EAST TIMOR’S LAW NO 1 OF 2003 ON THE JURIDICAL REGIME ON IMMOVABLE PROPERTIES
Original Citation: 2004 ETLJ 6
1. A Note on Land Rights in East Timor (Indonesian Government Regulation No 18 of 1991 on the Conversion of Land Rights in East Timor) & the Purported Suspension of Article 5 by Government Regulation No 24 of 1992