Criminal Action related to Condominium

Background

Since the validity of Law Number 20 of 2011 on Condominium (“Condominium Law”) , there are a lot of changes as the consequence to the revocation of Law Number 16 of 1985 on Condominium which is the previous regulation on condominum. One of the changes are visible in the provisions regarding the criminal action in Condominium Law. The provisions regarding criminal action are mentioned in Article 109 until 117 of Condominium Law.

The Obligation and Prohibition for the Condominium Developer

Every developer of commercial condominium which breach its obligations to provide a public condominium of at least 20% (twenty percent) from the total area of the floor of a commercial condominium which is built as mentioned in Article 97 of Condominium Law shall be sentenced  at most 2 (two) years of imprisonment or be imposed with a fine at most Rp 20.000.000.000,00 (twenty billion Rupiah).

As mentioned on Article 97 of Condominium Law that every developer of a commercial condominium shall not breach its obligation to provide public condominium of at least 20% (twenty percent) from the total area of the floor of  a commercial condominium that is built as it is mentioned in Article 16 paragraph (2) of Condominium Law.

Developers who made the Conditional Sale and Purchase Agreement (“CSPA”):

  1. That is not in accordance with the product that is sold on the market; or
  2. Before fulfilling the the requirement in Article 43 paragraph (2) of Condominium Law;

As mentioned in Article 98 of Condominium Law, shall be sentenced at most 4 (four) years of imprisonment or be imposed with fine at most Rp 4.000.000.000,00 (four billion Rupiah).

The requirement as mentioned in Article 43 paragraph (2) of Condominium Law is that the CSPA is made after fulfilling the certainty requirements of:

  1. Status of land ownership;
  2. Ownership of Building Construction Permit (“IMB”);
  3. The availability of infrastructure, facilities and public utilities;
  4. The building has been built at least 20% (twenty percent) of it; and
  5. The object of the agreement

The prohibition as mentioned in Article 98 of Condominium Law is that the developer is prohibited to make a CSPA which is not in accordance withthe marketed product or has not fulfilled the requirements as mentioned in Article 43 Paragraph (2) of Condominium Law.

The Obligation and Prohibition for The Individual dan Legal Entity

Article 1 number 16 of Condominium Law states that every person means an (i) individual or (ii) legal entity. Under Article 111 paragraph (1) Condominium Law, it is regulated that every person who:

  1. Harms or change the infrastructures, facilities or public utilities in a condominium’s neighborhood;
  2. Conducts the act which puts other people or any public interest of the condominium’s neighborhood in danger;
  3. Changes the function and utilization of a condominium unit; or
  4. Change the functions of the infrastructures, facilities, public utilities, along with community object (benda bersama), community section (bagian bersama) and community land (tanah bersama) in the construction or the manangement of condominium

shall be sentenced at most 1 (one) year of imprisonment or be imposed with fine at most Rp 50.000.000,00 (fifty million Rupiahs).

In Article 111 paraghraph (2) of Condominium Law it is regulated that, for the action as mentioned in paragraph (1) that causes danger to the lifes of people or things, the criminal offender shall be sentenced at most to 5 (five) years of imprisonment or be imposed with fine at most Rp 250.000.000,00 (two hundred and fifty million Rupiah).

Article 112 of Condominium Law states that everyone developing a condominium outside the specified location as defined as mentioned in Article 100 of Condominium Law is sentenced to up to 2 (two) years of imprisonment or be imposed with fine up to Rp 2.000.000.000,00 (two billion Rupiah). Article 100 of Condominium Law states that anyone is prohibited to develop a condominium outside the location that has been defined.

In Article 113 paragraph (1) of Condominium Law, every person who:

  1. Changes the designation of a condominium location that has been determined; or
  2. Changes the function and the utilization of a condominium

as mentioned in Article 101 of Condominium Law, it shall be sentenced to up to 1 (one) year of imprisonment or be imposed with fine up to Rp 50.000.000,00 (fifty million Rupiah). The prohibition in Article 101 of Condominium Law states that anyone is prohibited to change the designation of a condominium location that has been determined or to change the function and utilization of a condominium unless there is a spatial changes.

Furthermore, Article 113 paragraph (2) of Condominium Law states that in the event that the action as mentioned in paragraph (1) has led into the endangerment of a person’s life or things, the criminal offender shall be sentenced to up to 5 (five) years of imprisonment or be imposed with fine up to Rp 250.000.000,00 (two hundred million Rupiah).

Article 115 of Condominium Law states that every person who give rents or transfers the ownership of a public condominium’s unit to another party, as mentioned in Article 103 of Condominium Law, shall be imposed with fine up to Rp 150.000.000,00 (one hundred and fifty million Rupiahs).

In Article 116 of Condominium Law states that every person who interferes with the quality improvement activities as mentioned in Article 104 of Condominium Law shall be sentenced to up to 2 (two) years of imprisonment or be imposed with fine up to Rp 200.000.000,00 (two hundred million Rupiah).

The Prohibition for Local Goverment

In Article 114 of Condominium Law states that every government official who:

  1. Determines a location which may potentialy endanger the development of condominium; or
  2. Issues the Construction Permit (IMB) of condominiums that are not in accordance with the designated location.

as mentioned in Article 102 of Condominium Law, shall be sentenced to up to 5 (five) years of imprisonment or be imposed with fine up to Rp 5.000.000.000,00 (five billion Rupiah).

Article 102 of Condominium Law states that every government official is prohibited to: (i) determine a location that is potentially endanger the development of the condominium or (ii) to issue the IMB to develop a condominium that is not in accordance to the designated location.

Criminal Provisions for Legal Entity

In Article 117 paragraph (1) of Condominium Law states that in the event of action as mentioned in Article 109 to Article 116 of Condominium Law which is conducted by a legal entity, then besides imprisonment and fine toward its management, the sentence can also be given to the legal entity in the form of fine with 3 (three) times of the amount that is given to a person. In Article 117 paragraph (2) of Condominium Law, other than the fine as mentioned in paragraph (1), a legal entity can also be given additional sentence such as:

  1. Revocation of business license; or
  2. Revocation of the legal entity.

 

 

Febiriyansa Tandjung

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Criminal Action related to Condominium
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