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:
- to plan the use of the land;
- to use the land for the purpose of implementing its business;
- 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
Rights and Obligation of Owner and Tenant in a Condominium or Strata Title Unit
Posted by admin in Strata Title on October 22, 2009
Condominium is a multistory building for residential purpose, which every unit of it can be owned separately. As a residential building that can be owned separately, tenants of condominium have boundaries in making use of spaces and facilities inside of condominium. In a condominium there are common equipment, common facility, and common land. Those things are shared rights of a condominium which cannot be owned individually because they are one functional unit of condominium that cannot be separated.
Owner and/or tenant of a strata title unit has rights and obligations that are regulated by Government Regulation No. 4 of 1988 on Condominium (the “GR No. 4 of 1988”). Some of the regulations are mentioned below.
Article 61 GR No. 4 of 1988,
Paragraph (1)
Every tenant has the right to:
- make use of condominium and its environment including common equipment, common facility, and common land safely and orderly;
- to get protection as stated in its Article of Association and Bylaws;
- to choose and be appointed as the management of Tenant Association.
Paragraph (2)
Every tenant has the obligation to:
- obey and execute the regulation in a condominium and its environment in accordance with its Article of Association and Bylaws;
- pay the contribution for management and fire insurance premium;
- take care of the condominium and its environment including the common equipment, common facility, and common land.
Paragraph (3)
Every tenant is prohibited to:
- act or do something which can endanger the security, the order, and the safety of other tenants, building and its environment;
- modify the shape and/or adding building parts outside their strata title unit without the permission of the Tenant Association.
Other right which is not regulated in the paragraph mentioned above is that tenant who is also a member of Tenant Association has the right to vote. Tenant can use their right to vote in a General Meeting of the Tenant Association.
The right to vote consists of 3 (three) categories, as follows:
1. Residential Vote (Hak Suara Penghunian)
This is the right of member of Tenant Association to vote in order to determine issues on condominium’s order, the use of facility, and the obligation to pay contribution for management and fire insurance premium for shared rights such as common equipment, common facility and common land. Every owner of strata title unit can only cast one vote.
2. Management Vote (Hak Suara Pengelolaan)
This is the right of member of Tenant Association to vote in order to determine issues on maintenance, renovation, and the development of environment infrastucture, including social facilities, common equipment, common facility, and common land. Management Vote is counted according to its proportional comparative value from every strata title unit.
3. Ownership Vote (Hak Suara Pemilikan)
This is the right of member of Tenant Association to vote in order to determine issues on the relationship between tenant, the appointment of management of Tenant Association, and expenses of strata title unit. Ownership Vote is counted according to its proportional comparative value from every strata title unit.
According to the explanation above, every owner and/or tenant of strata title unit has rights and obligations which have been regulated by law. These regulations has a binding power with legal sanction, especially for obligations, which has to be executed by the owner and/or tenant of strata title unit.
The legal sanction related to tenant’s obligations is regulated under Article 77 GR No. 4 of 1988. Article (1) from the paragraph says, “anyone who violates the provisions of Article 30, Article 31, Article 34, Article 35 paragraph (1) and paragraph (3), Article 38 paragraph (2), Article 39 paragraph (1), Article 61 paragraph (2) and paragraph (3) and Article 67, is charged with a maximum inprisonment of 1 (one) year and/or a maximum fine of Rp.1.000.000,- (one million Rupiah).
Ardhityo Rompas
Overview of Real Estate Law in Indonesia for Foreigner or Foreign Entity
Posted by admin in Foreign Ownership, Strata Title on September 11, 2009
The real estate law in Indonesia is mainly governed in the Law No. 5 of 1960 on Principle Provisions of Agrarian (the “Agrarian Law”).
Right of Land
Under Agrarian Law, there are certain types of land, among others that are related in this regard are as follows:
- Right to Own (Hak Milik);
- Right to Build (Hak Guna Bangunan); Read the rest of this entry »
Strata Title Ownership for Foreigner and Foreign Entity in Indonesia
Posted by admin in Foreign Ownership, Strata Title on September 9, 2009
Indonesia as a developing country is one of the investment destination for developed countries to expand their global business activities. That is why more foreigners domiciled in Indonesia to do their business. However, there are boundaries or conditions for foreigner to own a residence especially a strata title, which is going to be discuss further here.
Condominium can only be built upon land with titles of rights to own (hak milik), rights to build (hak guna bangunan), and right to use of government land (hak pakai atas tanah negara) or right to manage (hak pengelolaan) according to Article 7 paragraph (1) Law No. 16 of 1985 about Condominium (the “Law of Condominium”) and Article 38 paragraph (1) Goverment Regulation No. 14 of 1988 about Condominium (“GR No. 14 of 1988”). Read the rest of this entry »
The Legal Status and Power of Tenant Association
Posted by admin in Strata Title on August 18, 2009
In a strata title concept, there is unit of strata title that can be owned separately and also jointly common equipment, common facility, and common land in line with the calculation of the proportional comparative value. That is why there should be a regulation on utilization and management by Tenant Association (Perhimpunan Penghuni) as a legal entity that will be responsible to manage the shared interest of owners and strata title tenants.
Tenant association is regulated in Articles 19 Law No. 16 of 1985 on Condominium (the ”Law of Condominium”). Tenant Association has a legal capacity as a legal entity under its Article of Association and Bylaws. According to Article 54 Government Regulation No. 4 of 1988 (“GR No. 4 of 1988”), Tenant Association can act for and on behalf of the strata title holders, externally and internally, for creating an orderly and peaceful environment within the condominium building. In other words, Tenant Association is similar to neighborhood association management (RT/RW) which can be used as a place to accommodate tenants’ aspirations and who is entitled to manage the condominium properly so that every facilities can function nicely for the tenants’ interest. Read the rest of this entry »
Contact Our Lawyer
-
