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Summary of Minister Regulation of Housing and Settlement Number 10 of 2012 on Implementation of Housing and Occupancy Area Through Proportional Occupancy

Summary of Minister Regulation of Housing and Settlement Number 10 of 2012 on Implementation of Housing and Occupancy Area Through Proportional Occupancy

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Background

Law Number 1 of 2011 on Housing and Settlement (“Housing and Settlement Law”) has already regulated the proportional occupancy. Under Article 34, every legal entity who intends to conduct development of housing and settlement has to implement proportional occupancy. Therefore, in order to regulate in detail the proportional occupancy, Minister Regulation of Housing and Settlement Number 10 of 2012 on Implementation of Housing and Settlement Area Through Proportional Occupancy (“Proportional Occupancy Regulation”) was issued.

Definition of Proportional Occupancy

Under Article 1 of Proportional Occupancy Regulation, the definition of Proportional Occupancy is an equal development of housing and settlement area with certain of composition in the form of single house and series house either modest house, middle house and luxury house or public condominium and commercial condominium.

Purpose of Proportional Occupancy

According to Article 3 of Proportional Occupancy Regulation, the purposes of Proportional Occupancy are:
To ensure the availability of luxury house, middle house and modest house for civilians which are constructed in one area or not in one area for modest house;
To ensure harmony among various categories of civilians from different professions, level of economy and social status of housing, settlement, occupancy area and settlement area;
To ensure crossed subsidy for procurement of infrastructure, facility, and public utility and funding of housing development;
Create a harmony of occupancy whether socially and economically; and
Utilize the use of land which is allocated for housing and settlement area.

Location of Proportional Occupancy

Every person who develops housing and settlement area are obligated to conduct Proportional Occupancy, unless developer intends to develop modest housing and/or public condominium. The implementation of housing and settlement development with Proportional Occupancy must comply with the location of Proportional Occupancy requirements. The implementation of housing and settlement area with Proportional Occupancy is conducted in a housing, settlement, occupancy area and settlement area.

The scale of housing, settlement, occupancy area and settlement area are:

Housing with at least 50 (fifty) houses to 1,000 (one thousand) houses;
Settlement with at least 1,000 (one thousand) houses to 3,000 (three thousand) houses;
Occupancy area with at least 3,000 (three thousand) houses to 10,000 (ten thousand) houses;
Settlement area with at least 10,000 (ten thousand) houses.
The requirements of location for Proportional Occupancy may be conducted in:

One regency/city in one area; or
Not in one area.

The location of Proportional Occupancy in one area at least accommodates 1,000 (one thousand) houses and location of Proportional Occupancy in separate area can be conducted in a housing which accommodate at least 50 (fifty) houses.

Composition of Proportional Occupancy

Furthermore, the compositions of Proportional Occupancy requirements are based on:

The number of houses; and
Area of the land.

The composition based on number of houses means the comparison of modest house, middle house and luxury house. The comparison is in the scale of 3:2:1, which is 3 (three) or more modest house against 2 (two) middle houses against 1 (one) luxury house.

This Proportional Occupancy Regulation defines commercial house as a housing which developed in order to obtain benefit. Luxury house defines as a commercial house with selling price four times higher than the selling price of modest house. Whereas, a modest house is defined as a public house which is built over land with area between 60 m2 and 200m2 with total floor area of building at least 36 m2 with selling price as regulated by the government. In addition to that, a middle house means a commercial house with selling price one to four times higher than the selling price of a modest house.

Composition based on land area means the comparison of area for modest house against total land area. The area of land for a modest house is at least 25% (twenty five percent) from the total land area with amount of modest houses at least equal to amount of luxury houses plus amount of middle houses.

Proportional Occupancy of Condominium

Proportional Occupancy of Condominium is a housing or occupancy area which is developed proportionally between commercial condominium and public condominium. The Proportional Occupancy is at least 20% (twenty percent) from the total floor area of commercial condominium. The public condominium may be developed in a separate building from the commercial condominium, or built within the area of commercial condominium.

Planning, Development and Controlling

A plan to develop housing and occupancy may be conducted in one or separate area or not in one area. Planning which is not in one area shall be conducted by the same person and such plans have to be in a form of the following documents:

Site plan;
design of a house;
Technical specification of a house;
Work plan of proportional occupancy;
Cooperation plan.
These documents must obtain legalization from local government, exclusively for Jakarta region it must obtain the legalization from the local government of Province of Jakarta.

Furthermore, the development of Proportional Occupancy has to be in accordance with the plan. The development of housing, occupancy area and settlement area with Proportional Occupancy solely conducted by a legal entity who works on housing and settlement area. The legal entity may be independent or in a form of cooperation as follows:

Consortium
joint operation; or
Other form of cooperation under the law.
The controlling of proportional occupancy is conducted through:

Warning letter;
Sealed location and temporary termination of development activity;
Cancellation of building construction permit;
Demolishing of building and/or
Sanctions.

The sanctions given to developer may be in a form of administrative sanctions or criminal sanctions which will be regulated further through Local Regulation, exclusively DKI Jakarta will be regulated through Provincial Regulation. In addition to that, pursuant to Article 150 of Housing and Occupancy Law, the administrative sanctions in relation to proportional occupancy may be as follows:

Written warning;
Limitation of development activity;
Temporary or permanent termination of development activity;
Temporary or permanent termination of housing management;
Temporary control by the government (locked);
Obligation to demolish the building in certain period of time;
Limitation of the business activity;
Freezing of building construction permit;
Revocation of building construction permit.
Revocation of the evidence of ownership of house;
Order to demolish the house;
Freezing of business license;
Revocation of business license;
Monitoring;
Cancellation of license;
Obligation to restore the land function in certain period of time;
Revocation of incentive;
Administrative fine and/or
Closure of location

Jeany Tabita

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Summary of the Local Regulation of DKI Jakarta Number 7 of 2010 on Building

Summary of the Local Regulation of DKI Jakarta Number 7 of 2010 on Building

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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

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The Breaking, Separation, and Merging of Land

The Breaking, Separation, and Merging of Land

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Background

The regulation on breaking, separation, and merging of land is contained in the Government Regulation Number 24 of 1997 on Land Registration (“GR No. 24/1997”) and the Agrarian State Minister Regulation/Head of National Land Agency Number 3 of 1997 on the Implementation of Government Regulation Number 24 of 1997 on Land Registration (“Agrarian State Minister Regulation No. 3/1997”).

I. The Breaking of Land Field

The breaking of land field is regulated in Article 48 of GR No. 24/1997 and Article 133 of Agrarian State Minister Regulation No. 3/1997.

GR No. 24/1997 and Agrarian State Minister Regulation No. 3/1997 do not mention the exact meaning of breaking of land. However, under the provision in the Article 48 paragraph (1) of GR No. 24/1997, it can be concluded that the breaking of land is the breaking of one land which has been registered into some area of land as requested by the right holder.

The Requirements for Breaking of Land, as follows:

Shall be in accordance with the applicable spatial plan and shall not cause non implementation of the law and regulation.
For its registration, each land is granted a new right number and created a measurement letter, a book of land and a new certificate, as a substitute of the previous right number, measurement letter, land book, and certificate. The previous measurement letter, book of land, and certificate of land right is not longer valid.
If the land right concerned is encumbered by mortgage, and/or other registered encumbrance, the breaking of land is implemented after obtaining the written approval from mortgage holder or other parties who is authorized to approve the removal of the encumbrance.
In implementating the breaking of land, as long as it is related to agricultural land, it shall note the provision of minimum limit in accordance with prevailing laws and regulation.
The application of the breaking of land that has been registered, is filed by the right holder or their proxy with the statement of breaking interest and attaching the following:
Certificate of right of land concerned;
The applicant identity;
Written approval of mortgage holder, if the land right concerned is encumbered through mortgage.

The Legal Consequence of the Breaking of Land Field [Note: ini maksudnya judul atau apa ya?]

The legal consequence of breaking of land is each part of land is a new unit of area of land with the equal legal status to the previous area of land.

II. The Separation of Land
The separation of land is regulated in the Article 49 of GR No.24/1997 and Article 134 of Agrarian State Minister Regulation No. 3/1997.

GR No. 24/1997 and Agrarian State Minister Regulation No. 3/1997 do not mention the exact meaning of separation of land. However, under the provision in the Article 49 paragraph (1) of GR No. 24/1997, it can be concluded that separation of land is the separation of one land that has been registered into a part or some parts as requested by the right holder.

The Requirements for Separation of Land Field, as follows:

1. For the registration, it is granted a right number and created its measurement letter, book of land and a separate certificate.

2. On the registration map, land register, measurement letter, book of land and certificate of land is recorded a note on separation of land.

3. The record of mortgage and other encumbrance that exists on the master book of land and master certificate of land, is recorded on a separate book of land and certificate of land.

4. The attachments that should be made in the separation of land are:

a. The master certificate of land right,

b. The applicant identity,

c. The written approval from mortgage holder, if the right of land is encumbered by mortgage.

d. A written power of attorney if the application is not filed by the right holder.

The Legal Consequence of Separation of Land

1. The equality of legal status between area of land or areas of land that are separated from its master area of land.

2. In the matter of separation of vast area of land, which is taken a part of their land to become a new unit of new area of land, the master area of land is still existed and its identity does not change, except for its width and limit.

III. The Merging of Land

The merging of land is regulated in the Article 50 of GR No. 24/1997 and Article 135 of Agrarian State Minister Regulation No. 3/1997.

GR No. 24/1997 and Agrarian State Minister Regulation No. 3/1997 do not mention the exact meaning of merging of land. However, under the provision in the Article 50 paragraph (1) of GR No. 24/1997, it can be concluded that the merging of land is the merging of two or more land that has been registered and its located is adjacent, and all of them is for and on behalf of the same owner, so that it becomes a new unit as requested by the right holder.

The Requirements for Merger of Land, as follows:

1. All of land unit are owned by the same owner and has the same term.

2. For the registration, it is granted the right number and created the new measurement letter, book of land, and certificate.

3. The registration is performed with statement that the measurement letter, book of land, and certificate of land that has been merged is no longer valid.

4. Creating the new measurement letter, book of land and new certificate for merged land.

5. The attachments that must be made in the merging of land are:

a. The certificates of land that will be merged,

b. The applicant identity.

6. May be performed if there is no record of mortgage or other encumbrance over the right of land that will be merged.

Legal Consequence of Merging of Land

The legal consequence of merging of land is the equatlity of legal status of the land as a result of merger with the status of merged land.

Alsha Alexandra Kartika

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Legal Aspect of the Grant of Right to Build (“Hak Guna Bangunan/ HGB”) or Right of Use (“Hak Pakai”) Over the Right of Ownership Land

Legal Aspect of the Grant of Right to Build (“Hak Guna Bangunan/ HGB”) or Right of Use (“Hak Pakai”) Over the Right of Ownership Land

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Under Article 35 paragraph (1) of Law Number 5 of 1960 on the Principle Provisions of Agrarian (“Agrarian Law”), it is stated as follows:

“Right to Build is right to establish and to have buildings over land that is not his own, with a maximum period of 30 years.”

Right to build (“HGB”) may be extended with a maximum period of 20 years as a request from right’s holder and bearing in mind the need and state of buildings. Subject who can be the holder of HGB is an Indonesian citizen or legal entity that is established under Indonesian law and domiciled in Indonesia. Legal entity is an institution that is given a status as legal entity, such as the Limited Liability Company, Cooperative, the Association of Unit Owners and Occupants of the Condominium, and the Foundation.

According to the Government Regulation of Republic of Indonesia Number 40 of 1996 on Right to Cultivate, Right to Build, and Right of Use Over Land (“GR No. 40/1996”), the granting of HGB over a right of ownership is performed by the holder of right of ownership through a deed made by Land Conveyancing Officer (“Pejabat Pembuat Akta Tanah/ PPAT”). The granting of HGB over a Right of Ownership is made by an agreement between the holder of Right of Ownership and the prospective holder of HGB which is stated in the deed that is made by PPAT. The granting of HGB over a right of ownership shall be registered at the Land Office (Kantor Pertanahan). The period of HGB that is issued over the right of ownership is maximum 30 (thirty) years and may be renewed with the new provision of HGB based on the agreement that is implemented on the deed which is made by PPAT and the respective right to build shall be registered in the local land office (kantor pertanahan setempat).

Under Article 41 of Agrarian Law, it is stated as follows:

“Right of Use is the right to use and/or collect the results of the land that is directly controlled by the State or land owned by others, who gives the authority and duties which is specified in the decision by the competent official or in an agreement with the owner of the land, which is not a lease agreement or the agreement to cultivate a land, all things that are not contrary to the spirit and provisions of this law.”

The granting of Right of Use over Right of Ownership is performed by the holder of Right of Ownership through a deed made by Land Conveyancing Officer (“Pejabat Pembuat Akta Tanah/ PPAT”). The granting of right of use over the right of ownership shall be registered on the land book in the Land Office. The right of use over the right of ownership also binds the third party since it is registered. The period of the right of use over the right of ownership is maximum 25 (twenty five) years and it can not be extended. Right of use over the right of ownership may be renewed with the new provision of right of use based on an agreement between the holder of right of use and the holder of right of ownership, as implemented on the deed which is made by PPAT and shall be registered on the local land office.

Alsha Alexandra Kartika

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An Overview on Bankruptcy and Community Property

An Overview on Bankruptcy and Community Property

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Bankruptcy is considered to be a legal process under the United States federal law to help the debt stricken consumers to discharge the debts. Bankruptcy is considered to be the last resort of the debt relief program. However, community property is the marital right bestowed by the state law. There is an intermingling relation between the federal bankruptcy law and state community property law. But some complicated legal issues emerge when the married couples in a community property state plan to file bankruptcy.

Know about community property states:

Each state in the US is required to determine whether to follow community property law. In January 2011, almost nine states are following community property law and it includes Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. In Alaska the residents have the option to follow anyone law from community property or common law property.

What are the filing options?

A married couple is eligible to file bankruptcy separately or jointly irrespective of the fact whether the couple belongs to community property states. Both the spouses should file bankruptcy at the same time but they should file separately. The bankruptcy court will not compel the married couple to file jointly but filing separately can leave an effect on community property and community debts.

What is joint filing?

It will be easier to manage the legal issues when the spouses file jointly in a community property state. If a couple file jointly then their debts will be included in the bankruptcy proceeding regardless of the fact that the debts or property are separate or community. When both the spouses file jointly then all marital debts and property will be included.

What is Separate Filing?

A spouse who’s planning to file bankruptcy separately might undergo legal complications. Filing bankruptcy can have an effect on spouse’s separate property and separate debts. If your spouse files separate bankruptcy then it’ll not have an impact on your debt or property if you are a non filer. Therefore, your property will not be exposed to risk of liquidation and your debts will not be discharged as well. In a separate filing, your community property and community debts will be included in bankruptcy although your spouse might not be involved in the filing. Therefore, the community property can be liquidated and all community debts can be discharge.

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Summary of Minister of Public Housing Regulation Number 06/PERMEN/M/2009 on the Delegation Of Authority To Grant Business Licenses On Housing Sector in order to Implement One Door Integrated Service in the Field Of Investment to the Chairman of Capital Investment Coordinating Board (“Regulation No. 6”)

Summary of Minister of Public Housing Regulation Number 06/PERMEN/M/2009 on the Delegation Of Authority To Grant Business Licenses On Housing Sector in order to Implement One Door Integrated Service in the Field Of Investment to the Chairman of Capital Investment Coordinating Board (“Regulation No. 6”)

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Background

The purpose of the issuance of Regulation No. 6 is to implement the provisions of Article 7 paragraph (2) and paragraph (3) of Presidential Regulation of the Republic Indonesia Number 27 of 2009 on One Stop Integrated Services.

Contents of Regulation No. 06

Government delegates the authority to grant an operating license in housing investments to the Chairman of Capital Investment Coordinating Board with the right of substitution (Article 1 paragraph (1) of Regulation No. 06). The Chairman of Capital Investment Coordinating Board issues business license for and on behalf of the Minister in charge of public housing matter (Article 2 of Regulation No. 06).

The authority that is delegated to the Chairman of Capital Investment Coordinating Board mentioned in Article 1 paragraph (2) of Regulation No. 06 is as follows:

housing business with foreign investment;
Housing business that is within the authority of the government
Under Article 3 of Regulation No. 06, it is regulated that the tasks of the Chairman of Capital Investment Coordinating Board in order to implement the provisions of Article 1 and Article 2 Regulation No. 06 are the following:

Rely on the List Of Closed Business and Opened Business Field with the requirement for capital investment and licensing issued by the Minister in charge of public housing matter;
In the implementation of the grant of license as set out in Article 1 and Article 2, if necessary, for further technical explanation, may contact Echelon I of Ministry of Public Housing;
Submit copy of business license issued to the Minister in charge of public housing matter;
Submit a report at least once a year to the Minister in charge of public housing.

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