by: Ana Kiwitter
First of all, actually the term strata title is not a term used in Indonesian legal literature. Strata title is occasionally used in common law jurisdictions, such as Singapore and Australia, which allows joint ownership in addition to other physical manifestations of horizontal and vertical ownership. Regarding terminology, while the terms rumah susun, apartments, flats, and condominiums are used synonymously, the relevant legal language for Indonesia uniquely employs the term rumah susun.
Strata title is not Hak Milik (Freehold) which normally means Freehold of the Building and the land.. Strata title is only a part of freehold, which means that the owner only have a freehold of one or some rooms in the building and and not the land.
#The legal basis for rumah susun regulations are:
-Law No. 16 of 1985 on Rumah Susun, and;
-Government Regulation No. 4 of 1988 on Rumah Susun.
The Definition of rumah susun under the Law is:
"A multi-storey building which was built in such a manner as to be divided into parts that are functionally structured in separate horizontal and vertical directions and the units can each separately be owned and inhabited primarily as a means of shelter, equipped with parts, goods, and lands that must be used together by the people living under the building."
Individual apartment owners possess the following common rights:
1.joint rights over common parts,
2.joint rights over common objects / goods,
3.joint rights over lands
all of which are a unified rights and are inseparable.
Ownership of a Unit of Rumah Susun ("HMSRS") is considered exist the ‘Deed of Separation’ has been registered and the ‘Land Book’ is made. To provide legal certainty surrounding the creation of flats, the government provides a strong evidentiary tool called the HMSRS certificate which is issued by the Land Office in the regency / city.
According to Article 7 of the Law, land used for construction of rumah susun must be:
1.Ownership Rights [equivalent to a ‘freehold’]
2.Rights to Build (HGB): -HGB over HM
-HGB over HPL (the land belongs to the State)
3.Rights to Use over the state’s lands : -HGU/H. Pakai over HM
-HGU/H. Pakai over HPL (the land belongs to the State)
This rights are what really relevant for mix marriage family without prenuptial Agreement, based on PP no 41 th 1996, because they are not allowed to own a HGB.
4.Rights to Manage (HPL)
# The important thing to note when you are interested in buying an apartment is to examine the rights relating to the unit of rumah susun. Problems can arise if the apartment was built on land that possesses an HGB over a HPL status. Article 38 of the Government Regulation states that if the rumah susun is built on lands that have the status of HPL, the developer must first apply for an HGB over a HPL status. In the event the latter status has not been obtained, then the rumah susun units cannot be sold.
Be careful, The big name / reputation of a bonafide company doesn't always guarantee a fair trade. Some of case happened, that the developer do not tell the customer the real status of the land, and some of them could even work it out with the officer and delete some notes on the certificate that could declare the real status of the land
(read: case of Khoe seng seng vs PT Duta Pertiwi Sinar Mas about ITC Mangga Dua and some other cases, one of the news link is : http://us.detiknews.com/read/2009/06/08/125024/1144050/10/
Check thoroughly the contract and certificate, and if necessary do a cross check with BPN. Do not completely let everything what is urgent for your safety being done by a notary which is chosen by the developer. There could be one little notes in the corner of the thick documents which put you in a big risk. Even if you're being told that the Contract form is just a normal contract, still do a proper check your selves. However It's true that every Firms would have a fix form for every customers, but it doesn't close the opportunity to have a special notes for a single case if it's required by customers.
In this case the Apartments will be built based on BOT (Built Operate Transfer) Agreement between the Developer and the Land owner, this agreement is also in definite period.
Foreigner and Their Indonesian Wife (without prenuptial agreement with assets separation) can not obtain HM,it means.. they are not allowed to hold a Strata title over HM or HGB (atas tanah negara or private) either, they could only obtain Strata title over HPL. It means that we only have a right over the building and if every legal transaction considering the Land would need a permission from the Owner of the land (3rd Party). HGB and Hak Pakai could be extended. If the land belongs to developer (Pure HGB), it would be easier, because they could make an agreement that the Ownership of the property may be extended one time without problems (and for WNI can even possibly be exchanged into HM status), problem may occurs if the Land belongs to 3rd Party (HGB over HPL), because if they decline it, than the owner of the buildings will lose their property to them.
The main principal of the property right here is: everything that are found in a piece of land, above or under those land, belongs to the land owner, regardless whose money is used to buy this land or how much money had been spended to build the hause (whether it's a luxurious house on the cheap land or reverse).
The main principal of the property right here is: everything that are found in a piece of land, above or under those land, belongs to the land owner, regardless whose money is used to buy this land or how much money had been
spended to build the hause (whether it's a luxurious house on the cheap land or reverse).
PURCHASING AN APARTMENT OR OFFICE UNDER STRATA TITLE
Ownership of offices and apartments is possible through strata title deeds, but the set of laws and regulations that were enacted in 1996 are still somewhat unclear and ambiguous. Therefore, to our knowledge, no foreigner has actually been able to receive a strata title certificate of ownership to reflect their office or apartment ownership.
The 1996 regulation (No. 41/1996) states that foreigners who reside in Indonesia, or visit the country regularly for business purposes, can purchase a home, apartment or condominium as long as it isn't a part of a government-subsidized housing development. However, foreigners can only hold land-use deeds, and most developments hold right-to-build deeds. As it stands now, it's not possible for someone to have a land-use deed for a sub-unit of a right-to-build deed. The length of these titles varies as well. Therein lies some of the difficulties and unclear ownership issues.
CONVERTIBLE LEASE AGREEMENT
One way for foreigners in general to go ahead a purchase property despite these legal ambiguities is to sign a Convertible Lease Agreement with the apartment property management office to purchase an apartment. Basically what this agreement entails is that the foreigner may purchase the apartment, but the title is still held in the name of the developer or property management firm. This lease agreement is for a definite period.The Convertible Lease Agreement states that if and when the prevailing laws and regulations permit the Lessee to become legal owner of the apartment/strata title unit, both the Lessor and the Lessee shall be obligated to sign a Deed of Sale and Purchase and the title shall be transferred to the foreign owner.
If you are interested in purchasing an condominium through this type of agreement, investigate the property management company thoroughly. In the current economic downturn many property developers are undergoing serious economic pressures and construction on many properties has been postponed or canceled. Show your contracts to (your own) bonafide lawyer to ensure that all legal
implications are covered thoroughly.
Notes: An agreement with a nominee is often a solution which is used by foreigners, but of course it's risky.
Because it's still an agreement with trust basis even if we have extra agreement in front of notary to secure our investments. Needless to say that according to the law, this person would be the legal owner. It need not to always happen, but if IT HAPPENS... if your nominee break the agreement, in fact.. they could still walk away from the courts without a big effort. Example of those cases are quite many.
#SPECIAL PROVISIONS FOR BATAM#
The rules for property ownership by foreign nationals in Batam fall under Decree No 068/KPTS/KA/III/1999. This regulations states that foreign nationals or companies are permitted to 100% own residential or commercial property in the Barelang area (Batam, Rempang and Galang). The only properties excluded from this decree are low cost and very low cost housing, but includes all other types of building structures.
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