The Cancelation of Conditional Sale and Purchase Agreement of Apartement According to Minister of Public Housing’s Decision
The stipulation about Apartement is regulated under Law Number 20 of 2011 concerning Condominium (“Condominium Law”). Under Article 1 of Condominium Law, Condominium is a highrise building which is built in an environment divided into parts and being structured functionally, either horizontally or vertically and its units can be owned and used separately, especially for residence including with common facility, common equipments, and common land.
The ownership of apartement unit is proven by the Certificate of Ownership over the Condominium Unit (“SHM Sarusun”) if the condominium is built above the land with right of ownership, right to build or right to use. However, if the apartment is built above the state owned object which is in the form of land or waqf land by lease, it can be proven with Certificate of Buliding Ownership over the Building (“SKBG”).
In order to buy an apartement/ condominium unit, the seller and the buyer may bind themselves by making the Conditional Sale and Purchase Agreement (”CSPA”). CSPA on the apartement is regulated under State Minister for Public Housing Decree Number 11/KPTS/1994 on Guidelines of Conditional Sale and Purchase of Condominium Unit. (“Kepmenpera No.11/1994”).
In relation to the cancellation of CSPA of apartement units, the Kepmenpera No.11/1994 does not specifically regulate about the conditions or requirements to cancel the CSPA. But on that regulation it is regulated that the CSPA can be nullified if there is a negligence from the Developers to perfectly handover the apartement unit, including the handover of public facilities and social facilities on the specified date that has been determined previously. Chapter III number 5.3 Point 10 on the Attachment of Kepmenpera No.11/1994 states that: Read the rest of this entry »
Based on Article 41 of Law Number 5 of 1960 on Basic Regulations on Agrarian Principles (“UUPA”), the definition of Right to Use is the right to use and/or to collect the product, from (i) land which directly controled by the State or (ii) land owned by other persons, which gives the rights and obligations as stipulated in its granting decision by the authorized official, or as stipulated in the agreement with the owner of the land, which is not lease agreement or land management agreement, as far as it does not conflict with the spirit and the provisions of this law.
The Right to Use can be given to:
- Indonesian citizens;
- Foreigner domiciled in Indonesia;
- Legal entity which established under the Indonesian Law and domiciled in Indonesia;
- Departments, Non – Departmental Government Agencies, and Local Governments;
- Social and Religious Organizations;
- Foreign legal entity which have representative in Indonesia;
- Representative of Foreign Country and Representative of International Organizations.
Basically, the Right to Use can be transferred. For the land which controlled by the State, the Right to Use can only be transferred to another party with a permit from the authorized official. However, for the land with the Right of Ownership, the transfer of the Right to Use to another party can only be done after it has been expressly stated in the agreement. Therefore, if by any chance the holder of the Right to Use is not eligible any more to hold such right, then that party will lose its right and shall transfer it to another party or the Right to Use will be eliminated.
Object of Right to Use
Land that can be granted with Right to Use are land which controlled by the state, land with Management Right, and land withthe Right of Ownenrship.
Granting of the Right to Use
The Right to Use is granted through the decision of Minister or authorized officer. The Right to Use of land with Management Right is granted through the decision of minister or authorized officer based on the proposal of the holder of the Right to Manage. This applies to land controlled by the state. And for the land with Right of Ownership, the Right to Use is granted through an agreement of both parties.
Period of the Right to Use
The Right to Use can be granted for a period of maximum 25 (twenty five) years and can be extended for 20 (twenty) years at most (maximum). A renewal can be granted after the time period of Right to Use and its extension has expired. Right to Use of land which controlled by the State can be extended or renewed if the land is still in good condition, and the holder of right has meet with the requirements to hold such right. The Right to Use of a land with Management Right can be extended and renewed by the proposal of the holder of the Management Right. Right to Use over a land with Right of Ownership can only be granted for 25 (twenty live) years and cannot be extended.
The Transfer and Elimination of Right to Use
The transfer of the Right to Use of land which controlled by the state can only be done after the issuance of minister’s decision or authorized officer’s decision. For land with Right of Ownership, the Right to Use can only be transferred if it’s allowed in the agreement. The transfer can only be conducted by the sale and purchase, exchange, capital participation, grant, and inheritance. The Right to Use is eliminated because of: Read the rest of this entry »
The Law of The Republic of Indonesia Number 22 of 2009 on the Traffic and Public Transportation (“UU LLAJ”) in Article 1 number 2 is stated that the traffic is the movement of transportation and people in the traffic road space. In other side, the construction/development of the property, either residentials, shopping center, apartement, and so on, is strongly related with the condition of the traffic in the sorrounding road network. It is caused by the movement of the traffic that come in and out of that property area. The mobility of tenant of the property will affect the service levels in the sorrounding road network. Therefore, it is a neccesary to conduct the analysis of environment impact on traffic (“AMDALALIN”)
Further stipulation about AMDALALIN is regulated on Government Regulation Number 32 of 2011 concerning The Management and Engineering, Impact Analysis, Also the Management of traffic Requirement. (“PP No.32/2011”)
According to the Article 47 PP No.32/2011, every plan to construct activities centre, residential, and infrastructure that will cause disturbance on security, safety, orderliness, and the smoothness of the traffic and public transportation shall conduct AMDALALIN. AMDALALIN itself is a set of study activities concerning the traffic impact of activities centre, residential, and infrastructure development which the result is stated in form of AMDALALIN document.
The result of AMDALALIN is required for the developer or builder in order to obtain:
- Location permit (Izin Lokasi);
- Permit to build (Izin Mendirikan Bangunan);
- The building construction permit with specific function in accordance with the legislations in building construction aspect.
The procedure to obtain AMDALALIN:
1. The property developer or builder in order to conduct AMDALALIN should choose consultant institution that have certified experts. Then the result of AMDALALIN is compiled in the form of AMDALALIN document.
2. The result of AMDALALIN is shall get an approval from: Read the rest of this entry »
Based on the Law of Republic of Indonesia Number 20 of 2011 on Condominium (“Condominium Law”), the definition of Certificate of Building Ownership of Condominium Unit (“SKBG Sarusun”) is an evidence of the ownership of condominium unit above the objects owned by states/regions in form of land or waqaf land by leasing.
SKBG Sarusun itself is an integral part that cannot separated, which consist of:
- The copy of the building book.
- The copy of the lease agreement on land.
- The lay-out map of the floor on the related level which shown the owned condominium unit.
- The descriptions about the amount of the related joint rights and joint parts.
- The construction of condominium is declare as finished if the SKBG Sarusun is issued.
Conditional Sale and Purchase Agreement (“CSPA”) is basically an agreement to buy the property (e.g. land, house, apartment unit, etc), wherethe seller promises to sell the property to the buyer, and the buyer promises to buy the propertyfrom the seller, subject to the fulfillment of certain requirements. Since the CSPA is a form of agreement, the CSPA is subject to the requirements as stated in Article 1320 Indonesian Civil Code (“Civil Code”).
Under Article 1320 Civil Code, the condition for an agreement to be valid is separated in 2 (two) clauses, there are subjective clause and objective clause. Subjective clause consists of:
- There must be agreement by the parties;
- There must be capacity to close the agreement.
Objective clause consistsof: Read the rest of this entry »