Legal Aspect on Term of Right of Use Over State Land and Land Under Right of Ownership

According to Article 41 of Law Number 5 of 1960 on the Basic Principles of Land (“Land Law”), Right of Use means right to use and collect the production over State Land or land which is owned by private parties. As stipulated in Article 42 of Land Law, Right of Use can be granted to:

  1. Indonesian citizens;
  2. foreigners domiciled in Indonesia;
  3. Indonesian companies established based on Indonesian law and domiciled in Indonesia; and
  4. foreign companies having its representative office in Indonesia.

 

Further, as stipulated in Government Regulation Number 40 of 1996 on Right of Cultivation, Right to Build, and Right of Use Over Land (“Government Regulation 40”), Right of Use can be granted over a land with land status of:

  1. state land;
  2. land under Right of Management (hak pengelolaan);
  3. land under Right of Ownership (hak milik).

Property ownership by foreigners is specifically stipulated in Government Regulation Number 41 of 1996 on Property Ownership by Foreigner  Domiciled in Indonesia (“Government Regulation 41”). Article 2 of Government Regulation 41 states the type of houses which are allowed to be owned by foreigners:

  1. houses built over state land;
  2. houses built based on an agreement with the holder of Right of Ownership. The agreement shall be made before Land Conveyancing Officer (Pejabat Pembuat Akta Tanah);
  3. condominium built under Right of Use over state land .

 

The Term of Right of Use

It is stipulated in Article 45 of Government Regulation 40 that the term of the Right of Use over state land is 25 (twenty five) years which can be extended for another 20 (twenty) years. The Government Regulation 40 has set out some requirements before the term of Right of Use can be extended:

  1. The land is used according to the land use;
  2. Conditions of grant of right have been properly fulfilled by right holder;
  3. The right holder fulfills the requirements as the right holder as set out in the Government Regulation 40.

Further, for the extension of Right of Use, Article 47 of Government Regulation 40 states that the extension application must be submitted at the latest 2 (two) years before its expiration date.

 

Moreover, the Government Regulation 41 has set out different term for Right of Use for the houses that built based on an agreement with the holder of Right of Ownership, the term of agreement must not exceed 25 (twenty five) years which the agreement can be extended with another 25 (twenty five) years. However, the extension for another 25 (twenty five) years shall be made in a separate agreement between the foreigner and the holder of Right of Ownership. Further, the extension can be made provided that the foreigner is domiciled in Indonesia or for the case of foreign company, having its representative in Indonesia.

 

If the foreigner who owns the house that is built with Right of Use over state land or based on an agreement with right holder is not domiciled anymore in Indonesia, within 1 (one) year, the foreigner has to assign his right to other parties which fulfill the requirements to own the land. In the event the foreigner refuses to assign his right to other parties, the house which is built over state land will be controlled by state to be auctioned. As for the house built based on an agreement with the right holder, the house will be owned by the right holder.

 

Jerry Shalmont

 

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Legal Aspect on Term of Right of Use Over State Land and Land Under Right of Ownership
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