Status and Position of the SHM of Condominium Units After A Fire: Makassar Mall Shopping Center

This study will examine and analyze the status and position of the SHM of Condominium Units in the building Blok-A of Makassar Mall after a fire. This research combines normative juridical and empirical research methods. The primary data were collected using direct interviews, while the secondary data was collected using literature study techniques. The data obtained in this research were then analyzed qualitatively. The results show that the SHM of Condominium Units in building Blok-A of Makassar Mall is still in the status quo. Meanwhile, the fire phenomenon and implementation of the construction of the new building Blok-A of Makassar Mall cannot be qualified as a requirement for the removal of the SHM of Condominium Units. In this case, implementing that construction is a form of PT. MTIR’s obligation to the Makassar Municipal Government based on the agreement held under the BOT system. In contrast, PT. MTIR made efforts to usurp the rights owned by traders as holders of SHM of Condominium Units in the building Blok-A of Makassar Mall. Therefore, it is recommended that the Makassar Municipal Government re-evaluate the involvement of PT. MTIR as the Holder of the Right to Build for Makassar Mall Shopping Center. In addition, it is recommended that PT MTIR register for the transfer of the right based on Government Regulation No. 24 of 1997 if they continue to impose their will to become the holder of the SHM of Condominium Units in building Blok-A of Makassar Mall. Furthermore, it is recommended that law enforcement agencies conduct investigations related to the Collaboration Agreement No. 44/511.2/SP/HK along with the accompanying addendums. In this case, traders must get legal certainty and protection as holders of SHM of Condominium Units in the building Blok-A of Makassar Mall.


INTRODUCTION
Evidence of ownership of condominium units in Indonesia is often juxtaposed with the term "strata title" (Suharto et al., 2019). The term strata title in the Statutes of the Republic of Singapore on the Sale of Commercial Properties Act 1979 is a legal construction of lot ownership on property with "leasehold" status (Easthope et al., 2013). Meanwhile, what is meant by leasehold in the English dictionary is a building/land for rent (Ayudiatri & Cahyono, 2022). Furthermore, leasehold is defined as a form of property ownership in which one of the parties buys the right to use and occupy space on the land for a specific and relatively long period (Merrill, 2020). In the Indonesian context, leasehold is synonymous with the principle of granting the Right to Build.
On the other hand, evidence of ownership of condominium units in Indonesia is still reaping polemics. This condition is caused by two types of evidence of ownership issued by different agencies. In this case, Law of the Republic of Indonesia Number 20 of 2011 on Condominium (hereinafter referred to as Law No. 20 of 2011) includes two types of evidence of ownership, namely: 1. Certificate of the Right of Ownership to Condominium Units (SHM of Condominium Units) issued by the Land Agency in Regency/Municipal; and 2. Certificate of Ownership to Building Units (SKBG) issued by Regency/Municipal technical agency who is in charge and responsible for building development.
Furthermore, some experts still argue that the SHM status of Condominium Units on the Right to Build is not a type of Land Right (Syam et al., 2022). In contrast, Elucidation Article 44 section (1)  From the polemics and different experts' perceptions, it can trigger a conflict of ownership and management status between the Owner of the Condominium Units and the Developer as the holder of the Right to Build (Yani & Badriyah, 2022). In addition, conflicts can occur due to implementing Developer policies contrary to applicable laws and regulations (Gumansing, 2019). On the other hand, fire beyond the Developer's control can also cause conflict between the parties.
One of the conflicts that can be studied on the legal relationship between the Developer and the Owner/ Occupant, namely what occurred in building Blok-A of Makassar Mall Shopping Center (hereinafter referred to as Makassar Mall), which is treated as a Non-Residential Condominium building. In this case, several owners with evidence of SHM of Condominium Units had to buy back the kiosk in Blok-A of Makassar Mall, with a new building due to fire. Andi Parenrengi stated that: 1 "The SHM of Condominium Units held by traders is no longer applicable after the building was torn down." Several previous studies have a discussion theme similar to this research. Zachman (2020)  Based on the description above, this study will examine and analyze the status and position of the SHM of Condominium Units in the building Blok-A of Makassar Mall after the fire.

METHOD
This research combines normative juridical and empirical research methods. Normative juridical research analyzes legal problems by referring to and originating from legal norms (Diantha, 2017). In this case, laws and regulations are positive laws, and the Collaboration Agreement is the law for the parties making it (Soemitro, 1990). In contrast, empirical is research whose object of study includes the provisions of laws and regulations (in abstraco) and their application to legal events (in concreto) (Qamar & Rezah, 2020). Furthermore, this type of empirical legal research focuses on legal practice as a social phenomenon in terms of the reciprocal relationships caused by social phenomena, including economic, political, social, psychological, and anthropological aspects (Irwansyah, 2021

RESULTS AND DISCUSSION
Fire incidents are generally caused by three factors, namely human actions, building electrical installation, and natural disasters. Meanwhile, the threat of fires in buildings and residential areas is often caused by human carelessness in buildings or housing that does not follow the applicable building safety standards (Indra, 2015). Furthermore, BNPB (2009) describes that an electric short circuit, an exploding stove, or a candle flame/oil lamp striking a mattress are common causes of fires in buildings and settlements. Areas in Indonesia that need to be watched for this threat include DKI Jakarta, Bogor, Depok, Tangerang, Bekasi, Bandung, Surabaya, Makassar, Medan, Denpasar, Semarang, Pekanbaru, Palembang, Padang, and other cities. In this case, areas with high population density and industrial areas that use fuel and other hazardous materials.
Fire incidents can only be qualified as force majeure if natural forces and unpredictable factors cause them (Simanjuntak, 2017). Unpredictable in the sense that it is not negligence or there is an element of sabotage to the incident. Meanwhile, if the first incident that occurred on 27 June 2011 is related to natural disasters, then it is essential to describe the context of the incident at that time.
Tabel di atas menunjukkan bahwa nilai indikator suhu dan kecepatan angin di Makassar tidak termasuk dalam kategori bencana alam. Selanjutnya, kedalaman dan magnitude berdasarkan riwayat pemantauan BMKG di Indonesia dapat dilihat pada tabel berikut. Based on the data and information above, it can be concluded that natural disasters were not the cause of the first fire in building Blok-A of Makassar Mall on 27 June 2011. Therefore, the first fire cannot be qualified as force majeure. In this case, the incident does not meet the elements of the sentence "... others caused by natural forces ..." as regulated in Article 8 section (2)

PT. MTIR's Obligations to the Object of the Agreement Based on the BOT System: The Building Blok-A of Makassar Mall After A Fire
Makassar Mall is the object of the agreement held under the BOT system based on Article 10 section (2)

Status and Position of the SHM of Condominium Units in the Building Blok-A of Makassar Mall After A Fire
Specific incidents resulting in the torn down of the Condominium building are phenomena that have occurred several times in Indonesia (Setiawati, 2020

Status dan Kedudukan SHM Sarusun pada Bangunan Blok A Makassar Mall Pasca Kebakaran
Insiden tertentu yang mengakibatkan robohnya bangunan Rumah Susun merupakan fenomena yang beberapa kali terjadi di Indonesia. Insiden tersebut incidents also often create legal problems, especially the status and position of the SHM of Condominium Units for the Owner (Ariyanti et al., 2019). The owner must accept the consequence that in the event of an incident resulting in the torn down of the Condominium building, the SHM of Condominium Units shall be null and void due to the absence of the building (Budiman, 2022).
However, if the torn down of the Condominium building is not caused by force majeure, then the Developer must be responsible for rebuilding. Therefore, with the rebuilding of the Condominium building, the SHM of Condominium Units will remain valid in the new building.
The explanation above can also explain the status and position of the SHM of Condominium Units in the building Blok-A of Makassar Mall after the fire. In legal reality, PT. MTIR is reselling Condominium Units in the new building Blok-A of Makassar Mall. PT. MTIR held a draw for 1,800 new locations on 23 October 2014 at Hasanuddin Building, Lantamal VI Makassar Headquarters (Basri, 2014 On the other hand, there is a legal mechanism to qualify the removal of SHM of Condominium Units. Article 52 section (1) of Government Regulation of the Republic of Indonesia Number 24 of 1997 on Land Registration (hereinafter referred to as Government Regulation No. 24 of 1997) regulates that the registration of removal of land rights, management rights, and ownership rights to condominium units is carried out by the Head of the Land Office by affixing a note to the land book and measuring document and destroying the certificate of the right in question, based on: a. data in the land book kept at the Land Office, if it concerns rights whose validity period is limited; b. a copy of the decree of the competent authority that the right in question has been canceled or revoked; c. a deed stating that the right in question has been relinquished by the right holder.
Article 55 section (3)  From the provisions above, it can be understood that the fire phenomenon and implementing the construction of the new building Blok-A of Makassar Mall cannot be qualified as a requirement for the removal of the SHM of Condominium Units as referred to in Article 52 section (1). Therefore, it is not justified if PT. MTIR conveys to Traders that the removal of the SHM of Condominium Units is due to differences in physical and juridical data between the building Blok-A of Makassar Mall and the site plan in the new building. In this case, the announcement should be submitted by the National Land Agency (NLA) as the authorized agency. Article 60 section (2)  However, from the series of descriptions above, the legal phenomenon has shown that traders as holders of SHM of Condominium Units in the building Blok-A of Makassar Mall have not received legal certainty and protection. In this case, some traders still fight for their rights by filing a lawsuit up to the cassation stage (Makassar State Court, 2018). Several other traders are still holding on to the emergency stalls because they refuse to re-purchase Condominium Units in the new building Blok-A of Makassar Mall. In contrast, several traders have bought back Condominium Units by credit to PT. MTIR to carry out product sales activities in the new building Blok-A of Makassar Mall.

CONCLUSIONS AND SUGGESTIONS
Based on the results and discussion above, it can be concluded that the SHM of Condominium Units in building Blok-A of Makassar Mall is still in the status quo. Meanwhile, the fire phenomenon and implementation of the construction of the new building Blok-A of Makassar Mall cannot be qualified as a requirement for the removal of the SHM of Condominium Units. In this case, implementing that construction is a form of PT. MTIR's obligation to the Makassar Municipal Government based on the agreement held under the BOT system. In contrast, PT. MTIR made efforts to usurp the rights owned by traders as holders of SHM of Condominium Units in the building Blok-A of Makassar Mall. Based on the description of these conclusions, it is recommended that the Makassar Municipal Government re-evaluate the involvement of PT. MTIR as the Holder of the Right to Build for Makassar Mall Shopping Center. In addition, it is recommended that PT MTIR register for the transfer of the right based on Government Regulation No. 24 of 1997 if they continue to impose its will to become the holder of the SHM of Condominium Units in building Blok-A of Makassar Mall. Furthermore, it is recommended that law enforcement agencies conduct investigations related to the Collaboration Agreement No. 44/511.2/SP/ HK along with the accompanying addendums. In this case, traders must get legal certainty and protection as holders of SHM of Condominium Units in the building Blok-A of Makassar Mall.