Background In densely populated urban areas, where available land is very limited, it is necessary to develop residential in the form of strata title to provide a complete, balanced, and harmony with its surroundings. Strata title is a storey building built on an...
The interest to live in the condominium tends to increase particularly to people who live in the big cities. According to Article 7 Law Number 16 Year 1985 on Condominium, it is stipulated that the condominium can only be constructed over land of Right to Own (Hak Milik), Right to Build (Hak Guna Bangunan), Right to Use (Hak Pakai) on State Land or Right to Manage (Hak Pengelolaan). In the event the developer is formed as business entity in the form of Limited Liability Company, the possible land title for this legal entity is the Right to Build. According to Decree of State Minister for Public Housing Affairs Number 11/KPTS/1994 on the Guidance on Conditional Sale and Purchase of Condominium (Pedoman Pengikatan Jual Beli Satuan Rumah Susun) states the developer shall obtain the following licenses:
Principle License, means the license which must be owned by a person or legal entity that will utilize the space for large scale business;
Location Permit from Regency or Municipal Land Office, for DKI Jakarta known as License of Land Appointment and Utilization (Surat Izin Penunjukkan dan Penggunaan Tanah / SIPPT). This license is given to a company in order to obtain the land for investment which is also valid as the license in relation to transfer of right, and to utilize the land for investment. This license is issued by the competent authorities for the land utilization in main route or for the land utilization of more than five thousand (5,000) m2. The developer has to obtain SIPPT prior to conducting the building construction;
Building Construction Permit, means the license to construct. The Developer is responsible to obtain this license from the competent authorities. If the building does not have the building construction permit, it will be categorized as illegal building and the competent authorities have the right to seal and demolish it.
After the developer completes the construction process, there are several steps that must be passed by the developer before the Certificate of Right to Own on Condominium (Sertifikat Hak Milik atas Satuan Rumah Susun) unit is issued:
Detail of division (pertelaan), means boundaries designation for the condominium, common facility, common equipment and common land with the proportional comparative value in the form of picture and description. In brief, the process begins with the submission of application through National Land Agency to Governor, and followed by research by related institutions together with Head of National Land Agency. Based on the research report from related institutions, the Ratification Decision will be issued and ratified by the Governor for DKI Jakarta and Regional Government for other regions;
Occupancy Worthiness Permit (Izin Layak Huni) means the license issued by Regional Government after investigating the condominium of which its construction is already finished based on the requirements and issued licenses. In the event these licenses have not been issued but the condominium unit is already sold or occupied, according to Law Number 16 Year 1985 on Condominium, there is criminal sanctions of 1 (one) year maximum or a fine of Rp 1,000,000.00 (one million rupiah) maximum;
Deed of Separation of Condominium, this deed is a proof of the separation of condominium unit which includes common facility, common equipment and common land which is registered to the Land Agency which will be approved by the Governor. This deed is used as the basis to issue the Certificate of Right to Own Condominium Unit. According to Regulation of Head of the National Land Agency Number 2 Year 1989 on Form and Procedure and Registration of Deed of Separation of Condominium, it is stated that the Deed of Separation must be registered by the developer to Land Officer together with the Land Certificate and Occupancy Worthiness Permit;
Issuance of Certificate of Right to Own of Condominium Unit, the basis of certificate issuance is the information provided in deed of separation which already approved by Regional Government. In general, this certificate consists of the copies of book of land of right to own of condominium unit, measurement letter of common land and blueprint of condominium unit which clearly shows the location of condominium unit and its detail of division (pertelaan) on the amount of common facility, common equipment and common land which constitute as an integral and inseparable part.
Furthermore, according to Regulation of Head of the National Land Agency Number 4 Year 1989 on Form and Procedure for Book of Land and Issuance of Certificate of Right to Own of Condominium Unit, after the Certificate of Right to Own of Condominium Unit is issued, the land certificate must be deposited in the Land Office.
Jerry Shalmont
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
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
The real estate law in Indonesia is mainly governed in the Law No. 5 of 1960 on Principle Provisions of Agrarian (the “Agrarian Law”).
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.
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.
Housing and residence are every human being basic needs. With the increasing number of inhabitants, the land space provided becomes very limited. Because of that, houses are made in a multi-story structure or commonly known as condominium (rumah susun).
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.