Many to confuse especially expats about the
posibblity of them to have an equal right
as Indonesian citizen about Land
(agraria) Rights in Indonesia.
Before we talk about this ,it is important to understand the Indonesia laws hierarchy. Well here is the
hierachy ;
- Undang-Undang
Dasar Negara Republik Indonesia Tahun 1945; (The state constitution)
- Ketetapan
Majelis Permusyawaratan Rakyat (The decision of people consultative assembly)
- Undang-Undang.
(Laws)
- Peraturan
Pemerintah Pengganti Undang-Undang; (The substitution regulation of laws)
- Peraturan
Pemerintah; (The Government regulation)
- Peraturan
Presiden; ( The President regulation)
- Peraturan Daerah
Provinsi; (The Governor regulation)
- Peraturan Daerah
Kabupaten/Kota (The Mayor/Regent
regulation).
Today Indonesia still hold the Agrarian Laws No 5. Years 1960 as
the principal laws of agraria and it hasn’t amended or replaced by other laws
of agraria .It is stated in Agrarian
Laws No 5. Years 1960 ,article no 16. there are several types of land right of
agraria as below:
- Hak Milik or Right of
Ownership /Free Hold Rights
- Hak Guna Usaha (HGU) or
Right of tenure by long lease/Cultivation Right on Land
- Hak Guna Bangunan (HGB) or
Right to Build
- Hak Pakai (Right to use).
More further base on Laws No 5. Years 1960 the subject of the above ownerships rights are
;
a. Hak Milik (Rights of Ownership)
1.
Indonesia Citizen (
WNI)
2.
Indonesia Legal
Entity/Company what specified by Peraturan Pemerintah
based on article 21
:
b. Hak Guna Usaha (Rigths Of Tenure By Long Lease)
1.
Indonesia Citizen
(WNI)
2.
Indonesia Legal
Entity/Company building according to Indonesia law and domiciles in
Indonesia
based
on article 30 section 1
c. Hak Guna Bangunan (Rights to build) :
1.
Indonesian citizen
(WNI),
2.
Indonesia Legal
Entity/Company incorporate/build according to Indonesia law and
domiciles in
Indonesia
Based on article
36 section 1
d. Hak Pakai (Rights to usage of land)
1.
Indonesia Citizen (
WNI)
2.
Foreigners who
domiciles in Indonesia in certain times
3.
Foreign company
that establish/incorporate under the Indonesian Law
4.
Foreign Company
that having its representative in Indonesia
5.
Department,
Governmental Agency Non Department and Local government
6.
Social and
religious organizations
7.
Representative of
Foreign state and representative of Internasional organization
Base on article 42 juncto article 39 PP No. 40/1996.
So by this Agrarian
Principle Laws No. 5 Years 1960 ,the
foreigner and foreign entities
are eligble to posses the land in Indonesia under
the terms of Hak Pakai ( Right to Usage)
The Hak Pakai or the
Right to Usage is Rights
to use land which owned by the state or private entities
by the agreement with the owner of the land .The agreement must be formed in the deed of conveyance . The deed of conveyance entitles the holder to use the
land by the detail and specific purpose
and terms
Now how about Peraturan Pemerintah (PP)or the government regulations
No 103 Year 2015 about Ownerships of Dwelling about the ownership
of residential house
and occupancy for foreigner whom domiciled in Indonesia.? Is there any principal amendement for foreign
entities regarding its right to posses the land in Indonesia?
To
bring some convenience and legal certainty for foreigner , the president of Indonesia has
signed the government regulation or Peraturan
Pemerintah (PP) No. 22 Year
2015 about the ownership of residential
house and occupancy for foreigner whom domiciled in
Indonesia. But some how the Peraturan
Pemerintah (PP) No. 22 Year
2015 is lower than the Agrarian Principle
Laws No. 5 Years 1960 as Undang undang (UU) or Laws is predominance compare to Peraturan Pemerintah (PP) or Government Regulation . Yet PP No. 22 Year 2015 stated the details of Hak
Pakai (Rights to Usage ) for foreigner and below are some issues which stated in PP No. 22 Year 2015
The article No. 2.
That
the foreigner who is not the
Indonesian citizen whom his or her
present in Indonesia gives advantages
,performs business or works or invests in Indonesia is eligible
to own house for residence or
occupancy under the Hak Pakai or
the Right to Usagese (sec. 1) . Foreigner mentioned in sec .1 ,is a
holder of a residence permit in Indonesia in accordance with the provisions of
laws and regulations (Sec. 2). In a case
of death of foreigner, the residential or dwelling house mentioned in sec.2 ,may
be inherited. (Sec. 3.)
The article No. 3.
Any Indonesian citizen who is married to foreigner has the
equal rights for land ownerships as
other Indonesia citizen (Sec.1).
The rights of land ownerships mentioned
for Indonesian citizen in sec.1 is not applicable for shared assets by the evidenced of the deed of separation (Sec
.2).
The article No. 4.
House of dwelling or residency which referred by article 2 is ;
Single landed house
which built on the Hak Pakai (Right to Usage) land and the Hak Pakai (Right to Usage ) which derivated from Hak
Milik or Free Hold Rights by the deed of land title registar (Sec.1).and
Vertical house which built on the land
of Hak Pakai (right to usage) (Sec.2)
The article No.5
The foreigner is granted a Hak
Pakai (Right to Usage) for the new purchased single landed house and a Hak
Milik ( Free Hold Rights) for the new purchased
vertical house which build on the Hak Pakai (Right to Usage ) land.
The ownerships of the
Hak Pakai (Right to Usage) property
is granted for 30 years and can be extended two times for a total 50
years ( 20 years of first extend ,30 years of second extend).
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