Archive for January, 2010

Legal Aspects of Building in Indonesia

Posted by admin in Building on January 14, 2010

dreamstimefree_902132Buildings are made to support people’s need of spaces. Building has many functions such as work space, business place, education place, recreation place and many more. In developing countries, especially for small countries, building is used to maximize the use of spaces.

In Indonesia, building is regulated in the Law No. 28 of 2002 on Building (“Law of Building”). According to Law of Building, the definition of building is a physical form of construction works which integrate with the land it stands on, partly or wholly stands over and/or under ground or water, having a function as a place for people to do their activities, either for residence or place to live, religious activity, business activity, sosial activity, culture or any specific activity.

Construction of building is held with the principle of utility, safety, balance, also the harmony between building with its environment. The regulation for building is intended for: Read the rest of this entry »

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Parties That Can Be Involved In Legal Conflicts in Condominium

Posted by admin in Strata Title on January 7, 2010

A life in condominium is different from life in ordinary house. Tenants not only have next door neighbours but also have upstairs and downstair neighbours. In condominium there is also a governing body that regulates the management of the condominium environment, maintenance and the construction of environmental infrastructure and social facilities for the purpose of living together with all tenants in condominium.

However, legal conflicts often arise in living in a condominium. The parties involved in are as follows:

a.    Developer;
Developer acts as condominium manager until a Tenant Association is established. Article 65 of Government Regulation No. 4 of 1988 on Condominium regulates the period of condominium management by the developer, at least three (3) months and a maximum of one (1) year since the establishment of Tenant Association.

Problems that often arise from the interests of developer are:
1) Developer decides on the charge of condominium management fees. Potential conflicts that arise are objections to the number of the fee that will be charged towards the tenants, who may feel that it is too high.
2) Developer basically has the principle of getting profit in constructing condominium, and it can be applied by determining service charge or management fees one sidedly.

b.    Tenants Association;
Tenants Association is a representative of tenants, it takes care the interests of condominium tenants.  Potential conflict that might arise is the decisions made by the Tenants Association which are not necessarily in the best interests of the tenants. This is happened often because there are strongholds that support or oppose the management of a Tenants Association. This has happened in some places.

c.    Owner and Tenant;
Owners and tenant as the parties who are using a strata title unit and its environment, have an obligation to comply with disciplinary or house rules in accordance with the Article of Association and Bylaws, to pay management fees and sinking fund, to pay fire insurance premium, and to maintain the strata title unit and its surroundings.  Potential conflict that may arise is if there are violations againts the rules, committed by the owner and/or tenants, and also disobedience of the owner and/or tenants in paying the management fees.

Conflicts that are possible to arise as described above are the result of the absence of detailed regulations as a legal protection for regulating the management and condominium’s life in Indonesia. Although there are Law No. 16 of 1985 on Condominium (the “Law of Condominium”) and Government Regulation No. 4 of 1988 on Condominium, but these rules cannot comprehensively accommodate the problems that can arise in living in condominium.

Ways that can be done to accommodate the problems above are as follows:
a.    Toset a proper regulation and the provisions in the Article of Association and Bylaws which govern the things that might potentially inflicting legal conflicts;
b.    Socialization from the housing agency or Regional Government about life in a condominium;
c.    Guidance and instruction on how to manage condominium properly and effectively.

Ardhityo Rompas

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Legal Status of a Property over the Right to Manage

Posted by admin in Right to Manage on January 4, 2010

Not all land has a pure rights over land. There is a Right to Manage (Hak Pengelolaan Lahan – HPL) over some lands, like in some areas in DKI Jakarta, for example Senayan, Kemayoran, Pulomas, etc.

HPL is not a right over land and is not regulated in the Agrarian Law but it is regulated in the Goverment Regulation No.8 of 1953 on Control Over State Lands and Agrarian Minister Regulation No. 9 of 1965 on the Implementation of the Conversion of Control Over State Lands and Provisions on the Subsequent Policy.

HPL object is agricultural land and non agricultural, whereas the subject or the holder of HPL in general is Provincial Government (“PEMDA”), State-owned Corporation (“BUMN”), and Provincial-owned Corporation (“BUMD”) according to the goverment regulation as referred above.

HPL has no ownership period and is given only on state land controlled by PEMDA, BUMN, and BUMD with the purpose to control zoning and land use, so it is suitable with its zoning plan.

HPL is essentially a right concerning authority as stated in Article 1 paragraph 1 Regulation of the Minister of Domestic Affairs No.1 of 1977 on the Application Procedure and Resolution of Grant of Rights Over Parts of the Right to Manage and its Registration, as follows:

  1. to plan the use of the land;
  2. to use the land for the purpose of implementing its business;
  3. to deliver some parts of the land to the third party, according to the requirement specified by the rights holder company, which includes its purpose, use, time period and financial, provided thatthat the grant of right of the land is conducted by the authorities, in accordance with the applicable laws and regulation.

Some kinds of rights of land such as Right to Build (HGB), Right to Cultivate (“HGU”), Right to Use (“HP”) can be issued over the HPL, but in practice and in accordance with Article 7 paragraph (2) of Law No.16 of 1985 on Condominium, a Right to Build is more often issued over HPL based on the agreement between the holders of HPL and the third party. For example, a Right to Build is issued over HPL with a purpose of building an apartment for residence. Therefore, every Rights to Build granted to third party must be approved by the HPL holder and as long as there is no change of use of a HPL land, then such approval shall be granted to third party. Thus, it is clear that an approval serves as a control function and is not an absolute authority from HPL holders.

Ivan Ari

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