Real Estate Law
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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Verification of Old Rights on Land Registration

Verification of Old Rights on Land Registration

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Article 24 Paragraph (1) of the Government Regulation Number 24 of 1997 on Land Registration (“GR No. 24/1997”) regulates that, for purposes of land registration which comes from the conversion of old rights, are proven by the evidence of existence of such rights in the form of written evidence, witness testimony and or the relevant statement that the level of its truth by Adjudication Committee on systematic land registration or by the Chief of the Land Office on sporadic land registration, are considered proper for right registration requirement, right holder and others people’s rights that is attached to them.

The application must be attached with the evidence of ownership/original document proving the existence of the related rights. Those evidences can be in the form of:

1. grosse certificate of eigendom right which is issued under Overschrijvings Ordonatie (S.1834-27), which had been given notes, that the related rights of eigendom was converted into ownership right.

2. grosse certificate of eigendom rights which was issued under Overschrijvings Ordonatie (S.1834-27) since the enactment of Law Number 5 of 1960 on Principle Provisions of Agrarian (“Agrarian Law”) until the date of land registration is conducted based on the Government Regulation Number 10 of 1961 within the respective area; or

3. letter of evidence of ownership right which was issued under the relevant Swapraja (autonomous region) Regulation; or

4. certificate of ownership which was issued by the Regulation of Minister of Agrarian Number 9 of 1959; or

5. certificate of ownership right from the authorized officer, either before or since the enactment of Agrarian Law, which is not followed by the obligation to register the given rights, but it has fulfilled all the obligation which mentioned in it; or

6. the private deed of transfer of rights that was given mark of testimony by Adat Chief/Head of the Village/Kelurahan which was made before this enactment of this Government Regulation (GR No. 24/1997); or

7. deed of transfer of land right which was made by PPAT, of which land has never been recorded; or

8. deed of waqaf oath/letter of waqaf oath which was made before or since the implementation of the Government Regulation Number 28 of 1977; or

9. the minutes of the auction which was made by an authorized Auction Officer, of which land has not been recorded; or

10. the appointment letter or the purchase of land plot for replacement of land that was taken by Government or Local Government; or

11. petuk Tax on land/Landrente, girik, pipil, kekitir and Verponding Indonesia prior to the enactment of Government Regulation Number 10 of 1961; or

12. an information letter of land history which has been made by the Land and Building Tax Service Office; or

13. the other form of any written evidence with any other name as also referred in Article II, VI and VII convertible provisions of Agrarian Law.

If, the written evidence of the land ownership is not complete or no is longer available, the verification of ownership shall be performed with the witness’s testimony or statement considered as reliable in the opinion of Adjudication Committee or the Head of Land Office. What is meant by the witness is a person who is competent to give testimony and knows about that ownership of land.

In the condition of the unavailability of evidence instruments as mentioned above, then Article 24 of paragraph (2) of GR. No. 24/1997, provide a solution by replacing the unavailability of the evidence of land ownership with the evidence of physical control for a period of 20 (twenty) years or more in a row by the applicant and its predecessors, with the following conditions:

a. that the possession and the usage of the related land was conducted explicitly and in a good faith for 20 years or more in a row.

b. that the fact of the possession and the usage of land is so long as there is no claim and, therefore it is considered to be recognized and justified by the relevant adat community or village/kelurahan;

c. that those things are strengthened by the testimony of people who is trustworthy;

d. that it has been given the opportunity for other party to file an objection though the announcement;

e. that has been conducted a research on the truth of the issues as mentioned above;

f. that finally the conclusions on the status of land and its right holder is formulated in a decision of recognition of related right by Adjudication Committee on systematic land registration and by Chief of the Land Office on sporadic land Registration.

The provision of Article 76 paragraph (3) of the Regulations of State Minister of Agrarian/ Head of National Land Board Number 3 of 1997 on the Implementation of Government Regulation Number 24 of 1997 on Land Registration (“Regulation of State Minister of Agrarian No. 3/1997”) regulates further about the evidences of the land ownership which is not available, as stated in Article 24 paragraph (2) of GR No. 24/1997.

The application must be submitted with the following attachments:

1.) statement letter from the applicant stating the following matters:

a. that the applicant has clearly possessed the relevant land for 20 years or more in a row, or has obtained its possession from party or others parties which have possessed it, so that the period of applicant and the predecessor possession is totally 20 years or more.

b. that the possession of the land has been conducted in a good faith;

c. that the possession has never been claimed and therefore it considered to be recognized and justified by the related adat community or village/kelurahan;

d. that the current land does not contain matters that do not correspond with reality, the signed statement letter which stated the willingnes to be sued in front of the court by criminal or civil claim if providing false information;

2.) Information letter from the Head of Village/Urban Village (Lurah) which usually known as Letter of Land Information and at least 2 (two) witnesses whose its testimony can be trusted, because of its function as a local traditional elders and/or residents who have lived in a long time in the rural/village where the relevant land located and, has no family relationship with the applicant until the second degree in both vertical and horizontal, which confirms the statement of the applicant in the Letter of Land Information above.

Verification of the old rights is usually conducted by groups of people who have not experienced modern administration and agrarian law. After the evidence of physical possession is attached to the application for land rights, and then conducted an investigation of the land as part of the land registration process, then it will be clear that the rights holders and the land has been registered and the holder of such rights have legal relationship with the land. As proof that the right holder is entitled to his or her land, the National Land Agent will issue a Certificate of Land. With the land registration and the issuance of the Certificate of Land, then legal certainty is achieved.

Sofie Widyana P.

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Government Regulation Number 44 of 1994 on Occupancy of Home by non Owner.

Government Regulation Number 44 of 1994 on Occupancy of Home by non Owner.

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Background

The purpose of the issuance of Government Regulation Number 44 of 1994 on Occupancy of Home by Non-Owner (“GR No. 44/1994”) is made to ensure fairness and legal certainty of the owner, renters/lessee or occupant in the use of the house and to implement the provisions of Article 12 and Article 13 of Law Number 4 of 1992 on Housing and Residential (“Housing and Residential Law”). This Housing and Residential Law is revoked and replaced by Law Number 1 of 2011 on Housing and Residential Area (“Housing and Residential Area Law”). On this day, GR No.44/1994 is still valid and it has revoked the Government Regulation Number 17 of 1963 on the Principles of Implementation of Government Regulation in Lieu of Law on Permanent Housing (“GR No. 17/1963”) and Government Regulation Number 49 of 1963 on Relations of Housing Operating Lease (“GR No. 49/1963”) as amended by Government Regulation Number 55 of 1981 (“GR No. 55/1981”) and all their implementing regulations so long they regulate the lease of a house.

Contents of GR No. 44/1994.

House is a building that serves as a residence or dwelling and means of fostering family (Article 1 paragraph (3) No. 44/1994). House can be occupied through lease. Under Article 1 paragraph (3) GR No. 44/1994 it is stated that leasing is a condition where the house is occupied not by the owner based on the lease agreement. Further, leasing is based on a written agreement between the landlord and tenant. It is regulated that a house that is in a dispute shall not be leased (Article 4 paragraph (1) & (3) GR No. 44/1994).

If a house is rented out over the land that is owned by other party, then under Article 4 paragraph (1), the leasing can be performed after obtaining the consent of the owner of the land and the approval must be in writing (Article 5 paragraph (1) & (3) GR No. 44/1994). With regards to the amount of rent fees, Article 17 GR No.44/1994 states that it is based on the agreement between the owner and the tenant.

GR No. 44/1994 also regulates the occupancy of house that is made not through a lease. Under Article 14, Article 15 and Article 16, it is stated that the occupancy of house that is not through a lease must be based on a written agreement between the owner and the tenant.

The GR No. 44/1994 was enacted on the 26 December 1994.

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Adjudication of Land Registration

Adjudication of Land Registration

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Definition of adjudication based on Article 1 point 8 of Government Regulation Number 24 of 1997 on Land Registration (“GR No.24/1997″) is “activity which is performed in the process of land registration for the first time, including collection and determination of the fact of the physical data and juridical data concerning one or more objects of land registration for the purposes of its registration”. Adjudication of land registration activities are special procedures performed for granting legal status of parts of land to the actual owner.

On the implementation of systematic land registration, which is generally in large-scale and massive, then to implement it, the Head of the Land Office is assisted by the Adjudication Committee that was formed specifically for that by the Minister or appointed officer, and thus the routine duties of the land office are not disrupted. In performing its duties, the Adjudication Committee is assisted by units of juridical and administrative tasks, units of collection of juridical data and units of administrative task where their duties, the composition, and the activity are regulated by the Minister.

Essentially, adjudication duties are investigation task to examine and seek for true formal evidence, that is juridical initial data which is owned by holder of land rights, and justification task, that makes determination and ratification of evidence which is already examined.

Even though, the actual duty of adjudication is actually a task of judicial institution that is to give a decision or judgment., but in the land registration, the adjudication duty is given to the government as an executive.

The adjudication of land registration activities, if managed seriously will support the acceleration of land registration and to ensure the legal certainty.

Sofie Widyana P.

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The Legal Status of Parking Space Under Condominium Law

The Legal Status of Parking Space Under Condominium Law

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Condominium is a multilevel building which is built in an area that is divided into sections which are structured functionally, whether horizontally or vertically that constitutes as units in which each can be owned and used separate
ly, mainly for housing complemented with common equipment (bagian bersama), common facility (benda bersama) and common land (tanah bersama). Condominium is regulated in the Law Number 20 of 2011 on Condominium (“Law No. 20/2011”).

Land on where the building of Condominium stands is a common land. According to the law, common land is a piece of land used under an undivided common right, which is a Condominium building over it, determined in accordance with the building license.

According to Article 1 point 5 and 6 of Law no. 20/2011 common equipment is part of Condominium that is undividedly owned for common use, in a unified function of a Condominium. The examples of these are foundation, column, wall, floor, block, roof, stair, pipes, electricity system, gas, telecommunication and public area of a Condominium. Then, common facility is defined as a thing that does not form part of a Condominium, but jointly owned undividedly, for common use. The examples of these are park, landscaping, social building, religious building, playground, and parking space which is separated or integrated with the structure of Condominium building. Accordingly, based on the definitions set out above, of parking space is regarded as a common facility .

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Land Registration Activity

Land Registration Activity

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Background

Definition of land registration in Government Regulation Number 24 of 1997 on Land Registration (“GR 24/1997”) constitutes perfection of scope of the land registration based on Article 19 paragraph (2) of Law Number 5 of 1960 on the Principles Provision of Agrarian (“Agrarian Law”) which includes; measurement, mapping, land records, registration and transfer of right of land and granting of evidence instrument of right as strong evidence.

Further provisions of land registration activities are regulated in GR 24/1997, which include:

1. Land Registration for the First Time ( Opzet or Initial Registration)

Land registration for the first time is the activity of land registration for the object of land that has not been registered based on Government Regulation Number 10 of1961 (“GR 10/1961”) or GR 24/1997. Land registration for the first time is performed through land registration systematically and sporadically. Land registration systematically is defined as activity of land registration for the first time simultaneously including all object of land registration that has not been registered in area or part of area of a rural/village (Article 1 paragraph 10 GR 24/1997). While, land registration sporadically is land registration activity for the first time concerning one or some object of land registration in area or part of area of a rural/village (Article 1 point 11 GR 24/1997).

Land registration activities for the first time, include:

a. Collecting and processing of physical data

1. Preparation of base map registration;

2. Registration of land boundary areas;

3. Measurement and mapping of land areas and making registration map;

4. Preparation of land registers;

5. Preparation of letter of measurement;

b. Evidence of rights and its records, including:

1. evidence of new rights

2. evidence of old right

c. The maintenance of land registration data activities.

d. Presentation of the general register and document

e. Activity of land registration data maintenance.

2. Maintenance of Land Registration Data Activities (Bijhouding atau Maintenance)

This is the land registration activity to adjust the physical data and juridical data in maps of registration, land register, name register, letter of measurement register, land records, and certificate with the changes that happen later on (Article 1 point 12 of GR 24/1997).

Based on Article 36 of GR 24/1997, the maintenance of land registration data is performed if there is a change of physical data or juridical data of land registration object that has been registered. Physically data changes occured if there is segregation, separation, or merging of areas of land that have been registered. Juridical data changes occured for instance if there is an encumbrance or or transfer of right over of land areas that have been registered.

The relevant right holder shall register the change of physical data or juridical data to the Land Office and the district/local city to be recorded in the book of land.

Activity of maintenance of land registration data, includes:

a. Registration of transfer and imposition of rights.

1. Transfers of right through auction;

2. Transfer of right due to inheritance;

3. Transfer of right due to merger or

consolidation or merger of limited

liability companies or cooperative;

4. Imposition of right;

5. Rejection of registration transfer and

imposition of right.

b. Registration of change of other land registration data, including:

1. Extension of the period of right of land;

2. Segregation, separation, and merging

of area of land;

3. Distribution of joint right;

4. Abolishment of right of land and ownership rights of condominium units.

5. Transfer and abolishment of mortgage;

6. Changes of land registration data based

on judgment or court decision.

7. Changes of name

Sofie Widyana P.

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Criminal Act Related to Condominium

Criminal Act Related to Condominium

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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.

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Obligations of Paying Service Charge by The Owner of Condominium Units

Obligations of Paying Service Charge by The Owner of Condominium Units

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Each member of association of owners and tenants of Condominium units (“PPPSRS”) has rights and obligations in relation to management of Condominium units. This membership is represented by householder and shall become effective since recorded in the list of tenants and/or have been domiciled in Condominium units which held by them in accordance with the applicable provisions.

Article 16 paragraph 2 point b Government Regulation Number 4 of 1988 on Condominium (“GR 4/1988”) regulates that, every tenants of Condominium is obligated to pay service charge. The service charge is derived from PPPSRS which is collected by the association or the management board in accordance with the terms that have been agreed between administrator and management board or under the Article of Association or by By-Laws of tenants.

This service charge is the responsibility of owner, unless the owner has transferred it to the tenant. Article 74 paragraph (2) of Law Number 20 of 2011 on Condominium (“Law 20/2011”) states that, PPPSRS consists of the owner or tenants who obtain the authority from the owner of the Condominium unit. The authority from the owner to tenant is limited to tenancy, for example, in determining the amount of service charge for the management of safety, cleanliness, or social community.

Service charge for each Condominium units is calculated from the total cost of the daily management of Condominium units within the budget set by PPPRS. The costs are covered jointly by the owner of Condominium units based on Proportional Value Comparison of Condominium units.

Any Condominium units’ tenant who violates Article 16 paragraph 2 point b of GR 4/1988who does not fulfill the obligation to pay service charge is categorized as unlawful act. As regulated in Article 17 paragraph (1) of GR 4/19988 the sanction is maximum confinement for maximum of 1 (one) year and/or a maximum fine of Rp. 1.000.000,- (one million Rupiah)

Sofie Widyana P.

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