Background As a form of law implementation of Article 182 point 1 of Regulation Number 28 of 2009 on Local Retribution and Tax, Joint Regulation of the Ministry of Finance and Home Affairs No. 213/PMK.07/2010 and No. 58 of 2010 on the Preparatory stages of Land...
Currently, construction of Condominiums is growing rapidly, considering the demand for housing is increasing. In this regard, in order to accomodate the people’s need for housing, the Law No. 20 Year of 2011 on Condominium (“Condominium Law”) stipulates that...
Workshop - License of Property Development in Indonesia
Building utilization is an activity of utilizing a building in accordance with the functions which is specified in the building construction license including maintenance, and periodic inspections activity. Building utilization can only be performed after the owner of the building obtains Certificate of Feasible Function. Certificate of Feasible Function hereinafter called SLF means certificate which is granted by Local Government against the building that has been completed and has met the requirement of feasibility function based on examination’s result of building’s feasibility function as a requirement to be utilized. (Article 1 number 16 Local Regulation of DKI Jakarta Number 7 of 2010 on Building).
To get SLF a person must submit a written request to the Head of Department which is responsible in supervision and control of the building. Written request which is submitted must be attached with some documents, as follows:
a. Identity Card (KTP)
b. Taxpayer Identification Number (NPWP)
c. Certificate of land
d. Building Construction License (IMB)
e. Maintenance report or technical building assessment report
f. As built drawing building
Head of Department may suspend or reject the requests of SLF that do not meet the requirements. The suspension of the request of SLF occurs when the requests of SLF do not yet meet the requirements of the building feasible function. The suspension of SLF is notified in writting to the applicant together with the reason of the suspension. The suspension which has passed the time period of 12 (twelve) months from the date of the suspension letter is received can be rejected with rejection notification letter which is given to the head of Neighborhood Association and / or Citizen Association in the applicant’s building areas, if the location of applicant is unknown or the applicant does not want to receive the letter.
SLF is issued within a period of 30 (thirty) days from the date of approval of document of the technical plan documents is granted. The validity period of SLF is different for each type of building. The period of SLF for simple single residential building and a simple row house is unlimited. The period of SLF for single residential building and row houses up to 2 (two) floors are 20 (twenty) years. The period of SLF for luxurious single residential building, the other general buildings, and certain buildings are 5 (five) years.
The request for renewal of SLF of the building is proposed no later than 60 (sixty) calendar days before the expiration of the SLF of the building or extension of the SLF of the building terminates.
A person who utilizes the building but does not have the SLF shall be punished with a maximum confinement of 6 (six) months or a maximum fine of Rp 50,000,000 (fifty million Rupiah).
Maria Amanda
Local Government of DKI Jakarta has issued the Governor Regulation of DKI Jakarta Number 38 of 2012 on Green Building (“Governor Regulation No.38/2012”) the regulation regulates the implementation of the concept of energy efficiency and environmentally buildings. Green building means a building that is responsible against environment and resource efficiency since the planning, construction, utilization, maintenance, until deconstruction (Article 1 number 11 of Governor Regulation No.38/2012).
The intention of issuance of the Governor Regulation No.38/2012 is as a framework for the official or the applicant in order to meet the requirements of a green building, having its purpose to realize the implementation of the building construction by paying attention to the aspect of efficiency, maintanance and using resources efficiently.
Construction of the building with a certain type and size of both new buildings and existing buildings must meet the requirements of green building. The types and size of buildings that must meet the requirements of green building include:
a. Apartment buildings, office buildings, trade buildings, and buildings which have more than one function within one (1) building with the size of entire floor of the building is more than 50,000 m2 (fifty thousand square meters);
b. Business functions, hotel, social and cultural functions, and health care buildings, with the size of the entire floor of the building is more than 20,000 m2 (twenty thousand square meters);
c. Social and cultural functions, educational service buildings, with the size of the entire floor of the building is more than 10,000 m2 (ten thousand square meters).
New buildings mean buildings that are currently in the planning stage. The technical requirements for green building of the new buildings include:
a. Energy efficiency;
Energy efficiency includes the efficiency of the building veil systems, ventilation systems, air systems, lighting systems, building transportation systems, and electrical systems.
b. Water efficiency;
Water efficiency includes the planning of water-saving sanitary equipment and planning of the use of water.
c. Indoor air quality;
Indoor air quality must calculate the air circulation in the room and the input of fresh air so itdoes not harm the occupants and the environment.
d. Land and waste management, and
Land and waste management include the requirements regarding spatial landscape planning on the inside and outside of the building and planning of rainwater reservoir systems, supporting facilities, and solid and liquid waste management.
e. Implementation of construction activities.
Implementation of construction activities includes safety, work health and environment, water conservation when conducting the construction activities, and the management of hazardous and toxic waste in construction activities.
Existing buildings means buildings that are under construction and / or already in the utilization stage. The technical requirements for green building of existing buildings include:
a. Conservation and energy efficiency;
b. Conservation and water efficiency;
Conservation and water efficiency include the use of water efficiently and water quality monitoring.
c. Indoor air quality and thermal comfort, and
d. Operational management / maintenance.
Operational management / maintenance activities include monitoring and evaluation activities.
The planning and construction of the building which violate this Governor Regulation may be imposed with administrative sanction by not issuing Building Construction License (IMB) and / or Certificate of Feasible Function (SLF).
Maria Amanda
Under Article 1 number 16 of Local Regulation of DKI Jakarta Number 7 of 2010 on Building (“LR No. 7/2010”), Certificate of Feasible Function (“SLF”) is a certificate which is granted by Local Government against the building that has been completed and has met the requirement of feasibility function based on examination’s result of building’s feasibility function as a requirement to be utilized.
Under Article 237 paragraph (1) of LR No. 7/2010, any person prior to utilization of building shall have SLF. SLF is granted to building which has been completed, met the requirement of reliability and feasibility function of building, and its use function has to comply with Building Construction License (“IMB”).
Legal sanction that may arise if using the building prior to obtain SLF is regulated in Article 283 paragraph (2) of LR No. 7/2010, as follows:
“Every building owners, building users, service providers of building construction who violate the provisions on Article 13 paragraph (3), Article 15 paragraph (1), Article 124 paragraph (3), Article 183 paragraph (1), Article 186 paragraph (4), Article 188 paragraph (1), Article 191, Article 192, Article 195, Article 231 paragraph (1), Article 237 paragraph (1), and Article 245 paragraph (1) are punished with a maximum confinement of 6 (six) months or a maximum fine of Rp 50,000,000 (fifty million Rupiah).”
In the criminal provision, there is an article which is related to SLF, namely Article 237 paragraph (1). Therefore, it can be concluded that any building owners, building users, service providers of building construction who do not have SLF when utilizing the building, shall be punished with a maximum confinement of 6 (six) months or a maximum fine of Rp 50,000,000 (fifty million Rupiah).
Alsha Alexandra Kartika
Background
The Province of DKI Jakarta is the one of the biggest city in Indonesia. As the capital city of Indonesia, DKI Jakarta provides various kinds of service to the public. One of its services is related with building development licenses. As an effort of doing servicing, structuring, supervising, and publishing of physical activity and administrative matter of the implementation of building in DKI Jakarta, the Local Government (Pemerintah Daerah) has set out the regulation of building in DKI Jakarta, with the issuance of Local Regulation Number 7 of 1991 (“LR No. 7/1991”).
Along with the times, the Indonesia Government has set out regulation on Building, namely Law Number 28 of 2002 on Building (“Law No. 28/2002”). The enforcement of Law No. 28/2002 causes amendment of LR No. 7/1991. LR No. 7/1991 is amended by the Local Regulation of DKI Jakarta Number 7 of 2010 on Building (“LR No. 7/2010”) which is valid since 5 November 2010.
Classifications of Building
Building function is classified based on:
a. Complexity level, which includes simple building, not simple building, and special building.
b. Permanence level, which includes permanent building, semi permanent building, and emergency or temporary building.
c. fire risk level, which includes building with a high level, medium level, and low level of fire risk.
d. earthquake zoning level which is set forth by the authorized agency.
e. location, which includes buildings in solid location, medium location, and tenuous location.
f. height, which includes high level building, medium level building, and low level building.
g. ownership, which includes state-owned building, business entity building, and individual building.
Right of Land Status
Any person who would construct the building must have a clear status of ownership land. For the building that is constructed on land owned by other parties, they shall obtain Land Utilization Permit (Izin Pemanfaatan Tanah) from the holder of right of land, in the form of a written agreement, containing at least the following:
a. rights and obligations of the parties;
b. area, location and boundary of land;
c. the function of building; and
d. the period of land utilization.
Building Ownership Status
Any person who owns some part of the building or whole building, shall have the evidence of building ownership which is issued by Local Government, except for the special function building by the Government. In order to issue the evidence of building ownership, each building shall have Building Construction License (“IMB”) and Certificate of Feasible Function (”SLF”).
In one building, it may be given more than 1 (one) evidence of building ownership. The evidence of building ownership may be owned by different owners and it is able to be transferred to other parties. In the matter of the building owner is not the land owner, the transfer of right shall obtain the approval from the land owner.
Requirement for the Issuance of IMB
Any person who would construct the building shall have IMB. IMB may be issued either in permanent or in temporary period of time and it may be given gradually. In order to obtain the IMB, each person shall submit the written application to the Head Office (Kepala Dinas) by attaching the minimum requirements as follows:
a. the evidence of land ownership status or the evidence of agreement;
b. Land Utilization License from the land owner;
c. identity/data of building owner;
d. technical plan of building, and
e. the result of environmental impact analysis for the building that makes a significant impact to the environment.
IMB is issued with the maximum period of time at least 30 (thirty) days since the approval of technical plan document is granted. The application of IMB that has qualified the administrative and technical requirements is approved and legalized by the Local Government. The Chief of Local Government may suspend the IMB establishment process or refuse the IMB application which does not meet the requirements.
Requirement for the Issuance of SLF
SLF is granted for building which has been completed, meeting the requirements of reliability of building and feasibility function, and the function of its utilization is in accordance with the IMB. SLF may be granted gradually in accordance with work level that has completed based on the written application. The examination of feasibility function of building based on the granted IMB, includes:
a. the compatibility of function;
b. layout of building;
c. safety;
d. health;
e. comfort, and
f. ease.
Requirement for the Issuance of Evidence of Building Ownership (Bukti Kepemilikan Bangunan Gedung)
In the matter to obtain an evidence of building ownership, each person shall submit the written application to the Chief of Local Government by attaching the administrative requirement, containing at least the following:
a. agreement and/or approval from both parties in the form of a written agreement;
b. IMB;
c. the suitability of actual data (the latest) with data in the document of right of land status, and
d. the suitability of actual data (the latest) with data in the IMB, and/or document of building ownership status that has existed/owned.
For building that has more than 1 (one) evidence of building ownership, the owner shall attach a written agreement containing at least:
a. rights and obligations of the parties;
b. area, location and boundary of land;
c. the function of building; and
d. the period of land utilization.
The evidence of building ownership is issued with the maximum period at least 30 (thirty) days since the application meet the requirement. The validity period of evidence of building ownership is based on the validity period of deed of land and/or written agreement. The application of evidence of building ownership may be deferred or rejected if it does not meet the requirements.
Requirement for the Environmental Impact Assessment
Every building plan which may cause the important environmental impact assessment shall have an environmental impact analysis. The building plan which does not cause the environmental impact shall have document of environmental management effort and environmental monitoring effort or statement of environmental management.
Administrative Sanction
Every building owner, building user, service provider of building construction, building manager who does not fulfill the obligation of function, and/or the requirement, and/or the providence of building, will be imposed administrative sanction that may include:
a. written warning;
b. restriction of construction activity;
c. temporary or permanent termination on the implementation of development;
d. temporary or permanent termination on the building utilization;
e. freezing of IMB;
f. revocation of IMB;
g. freezing of SLF;
h. revocation of SLF;
i. IPTB (Izin Pelaku Teknis Bangunan) freezing;
j. decreasing of IPTB’s level
k. revocation of IPTB;
l. revocation of the approval of discharging technical plan;
m. freezing of the approval of discharging technical plan;
n. fines; or
o. clearance of building order.
The types of sanction are determined by major and minor violations that have been performed.
Criminal Provisions
Every building technical party who violates the obligations, responsibilities, and prohibitions, shall be punished with a maximum criminal confinement of 3 (three) months or a maximum fine of Rp 50,000,000 (fifty million Rupiah).
Any building owner who does not have IMB and SLF as a requirement of the issuance of evidence of building ownership, who is constructing without having the IMB, who does not have SLF when they want to utilize the building, and who does not have the evidence of building ownership, shall be punished with a maximum confinement of 6 (six) months or a maximum fine of Rp 50,000,000 (fifty million Rupiah).
Transitional Provisions
After the LR No. 7/2010 comes into force, then:
a. The license application which is submitted and approved prior to the date of enactment of LR No. 7/2010 and it is still in the settlement process, is processed under the LR No. 7/1991;
b. IMB that has been issued under the LR No. 7/1991 but the related permit has not been issued yet, then the applicable regulation is LR No. 7/1991;
c. the building that has been established, but it has not obtained IMB yet when the LR No. 7/2010 is valid, to apply the IMB it shall obtain the SLF ; and
d. as long as the implementing regulation of LR No. 7/2010 has not been issued yet, then the existing implementation regulation is still valid as long as it is not in contrary to the LR No. 7/2010.
Alsha Alexandra Kartika
Criminal Act Related to Condominium
Criminal provisions related to condominium is regulated in Article 21 until Article 23 of the Law Number 16 of 1985 (“Law 16/1985”) on Condominium.
Article 21 paragraph (1) of Law 16/1985 regulates criminal sanction, that is stated, “Any person who is intentionally against the provisions of Article 6 of Law 16/1985, Article 17 paragraph (2) of Law 16/1985 and Article 18 paragraph (1) of Law 16/1985 shall be punished by a maximum imprisonment of 10 (ten) years or a maximum fine of Rp 100,000,000, – (one hundred million rupiah)”.
Further, in Article 21 paragraph (3) of Law 16/1985 regulates criminal sanction that is stated, “Any person by whose negligence causes infringement of the provisions as referred in Article 6 of Law 16/1985, Article 17 paragraph (2) of Law 16/1985 and Article 18 paragraph (1) of Law 16/1985, shall be punished by a maximum jail of 1 (one) year or a maximum fine Rp. 1.000.000,- (one million rupiah)”.
The provision of criminal sanction as referred in Article 21 paragraph (1) of Law 16/1985 is categorized as a crime. Whereas provision of sanction in Article 21 paragraphs (3) of Law 16/1985 is unlawful act.
In Article 22 of Law 16/1985 it is stipulated that, beside that imposed negligence criminal act as defined above, it must also comply with the provisions as referred in Article 6 of Law 16/1985, Article 17 paragraph (2) of Law 16/1985, Article 18 paragraph (1) of Law 16/1958. Under Article 23 of Law 16/1985, it is stated that, Government Regulation governing the implementation of law 16/1985 may contain punishment of jail of criminal act by maximum 1 (one) year and/or fine of Rp. 1.000.000.- (one million rupiah).
Criminal act in relation to Condominium that may be categorized as infringement and crime is any actions that are against provision in Article 6 of Law 16/1985, Article 17 of paragraph (2) of Law 16/1985 and Article 18 paragraph (1) of Law 16/1985 as follows:
1. Requirement of Technical and Administrative
The provision in Article 6 of Law 16/1985 stipulates that, the construction of Condominium shall meet the technical and administrative requirements. Furthermore, the provision of technical and administrative requirement are governed by Government Regulation. Technical requirement is defined as regulation concerning building structure, security, safety, health, convenience, and others related with the architecture, including the completeness of infrastructure and environmental facilities. While the administrative requirements are the business license of the company’s housing construction, permits of location and/or allocation, as well as building construction permit (IMB).
2. Implementation of Execution Mortgage and Fiduciary After Announcement and Notification
This provision is regulated in Article 17 paragraph (2) of Law 16/1985 which stipulates that, for the execution of mortgages and fiduciary in order to repay a debt, may only be performed after 1 (one) month after it is notified in writing to the parties concerned and published in two newspapers circulating in that area, and/or local print media, without any parties that claim the objections. Announcement and notification provisions of the obligation before the execution of mortgages and fiduciary are intended in this Law to protect the other parties’ interests.
3.Feasible Occupancy Permit
The provisions in Article 18 paragraph (1) Law 16/1985 regulates that, condominium units that have been built can be sold for occupancy after obtaining feasible occupancy permit from Government of the relevant region. Feasible occupancy permit is also
required for non-residential condominium. The provisions in this Article are intended to secure the safety, security and order of the tenants.
Sofie Widyana P.
Article 1 Paragraph 7 of Government Regulation of Republic Indonesia on Condominium (“GR 4/1988”) explains the definition of Proportional Comparison Value, is number which shows a comparison between condominium units toward the right upon the common part, common properties, and common lands.
Proportional Comparison Value may be calculated by using 2 (two) ways, which are:
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1. Based on the related amount or value of condominium units towards the total amount of building area.
2. The comprehensive value of condominium at the first time when the developer calculates the total construction costs to determine its selling price
The elucidation in the Article above states that
Proportional Comparison Value from condominium units as referred is calculated when the time developer calculates the total development cost. The price of each unit condominium towards the price of common part, common property, and common lands at the time of calculation of total development cost is used as the basis of Proportional Comparison Value. The Proportional Comparison Value is used as a basis for conducting the separation and the issuance of “Certificate of Condominium Units”, and also as a basis for determining rights and obligations of ownership and management of common part, common property, and common land.
Sofie Widyana P.