Articles

Parties That Can Be Involved In Legal Conflicts in Condominium

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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

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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

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Rights and Obligation of Owner and Tenant in a Condominium or Strata Title Unit

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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

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Strata Title Ownership for Foreigner and Foreign Entity in Indonesia

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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.

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The Legal Status and Power of Tenant Association

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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.

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Legal Aspects on Strata Title Super Block Development in Indonesia

Legal Aspects on Strata Title Super Block Development in Indonesia

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In Indonesia the property conglomorates has been intensive in developing the superblock. There is a Lippo Group that builds Kemang Village and St. Moritz. We also have Ciputra Group that builds Ciputra World, in Surabaya and Jakarta. We have Agung Podomoro Group that builds Podomoro City in Tanjung Duren area and there are so many other projects that are undergoing now.

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