marklindsay
We ARE using a Notaris, but we do want to have EVERYTHING cross checked.So please, no criticisms and comments re Notarys versus Lawyers etc.. We know there will be a double fee, one based on a percentage the other?I just want an informed indication of what the fee might be.The Notary has prepped the draft, authorised the survey etc and has provided a "minimal " document . The land is in two brothers names, into one document. We need to ascertain that it's zoned for residential, free of incumbrance , IMB, pondok wisata etcWe want a solid and researched agreement , hence the due diligence of a lawyer.Any ideas re a fair fee?
spicyayam
Lawyers don't think they have fixed fees like notaries so they can charge what they want and will probably quote you a high price which you can then negotiate down like everything else.
Markit
Hi Mark I'm not going to go into notary vs. lawyer as such, I just question the whole western ideal of using one or the other to get a sense of security about whatever financial endeavor we have in view. The main purpose of using a legal advisor is to have done all one can to assure that all the legal niceties have all been observed and that to the best of everyone's knowledge the project can go forward having observed all the legalities. Most westerners feel almost a religious need to have a lawyer looking into their projects. Lawyers in the west are insured against most forms of malfeasance, critical errors and in many cases fraud and therefore can be sued by anyone that feels they have been abused by the work performed by these worthies with a good chance of getting their squandered monies back if the case is proven. Try that here. There is then no financial or legal motivation for a legal advisor to be telling the whole truth and nothing but the truth. Save your money and just get a second notary to check the work of the first one.
spicyayam
Perhaps I am biased as my wife is a lawyer, but since she has started helping people it has only opened my eyes more to the potential problems people (not just foreigners) have buying property in Indonesia. The problem with asking a second notary to get involved is that they might not like getting involved in another notary's business. A notary is supposed to act independently for the buyer and seller, but it is easy for them to favor one over the other. Same with nominee agreements. The language agreements are written in like any legal language is not easy to understand and even more difficult if it is not your native language. A notary may provide a sample agreement for you to read over and check, but on the day of signing it is possible that the agreement has been changed, so you really need to go over it all again line by line, before signing. Unless you feel comfortable doing this, then again it is a good idea to have your lawyer do this for you. There is then no financial or legal motivation for a legal advisor to be telling the whole truth and nothing but the truth.[/QUOTE]Maybe, but lawyers do care about their reputation and how most of them get business is through referrals, so it is their best interest to act faithfully for their client.
davita
Perhaps I am biased as my wife is a lawyer,......()Maybe, but lawyers do care about their reputation and how most of them get business is through referrals, so it is their best interest to act faithfully for their client.[/QUOTE]Given the above Spicy it would be a win-win if your wife could provide a legal guideline on how best to legally utilise the nominee arrangement, and avoid the pitfalls.e.g. Many foreigners trust notaries who submit a nominee-signed and notary witnessed, [B]undated[/B], transfer form, so the foreigner can sell the property without the nominee's knowledge. How legal is that?I feel sure her expertise would be rewarded in her business and you would certainly get Balipod member's applause....:applause:
sakumabali
We ARE using a Notaris, but we do want to have EVERYTHING cross checked[/QUOTE]some information can't be crosschecked here :( u will buy a leasehold land? If yes u have no guarantee that the landlord hasn't sold it before to other parties.there's no register - just trust. sounds great eh?
Markit
The problem with asking a second notary to get involved is that they might not like getting involved in another notary's business. [COLOR=#ff0000]Agreed, but still possible. [/COLOR]A notary may provide a sample agreement for you to read over and check, but on the day of signing it is possible that the agreement has been changed, so you really need to go over it all again line by line, before signing. Unless you feel comfortable doing this, then again it is a good idea to have your lawyer do this for you. [COLOR=#ff0000]If I'm the client who hired the notary isn't he bound to work on my behalf?[/COLOR]Maybe, but lawyers do care about their reputation and how most of them get business is through referrals, so it is their best interest to act faithfully for their client.[/QUOTE]Lawyer Joke: What's 500 lawyers at the bottom of the ocean?A good start.
spicyayam
[COLOR=#FF0000][I]If I'm the client who hired the notary isn't he bound to work on my behalf?[/I][/COLOR][I]Yes but he is working for the buyer, seller and sometimes a nominee also. What if the owner or nominee asks the notary to add clauses in the agreement in their favor. How are you going to know about them or understand them. The notary may not intentionally realize it is to your detriment.[/I][COLOR=#333333]Given the above Spicy it would be a win-win if your wife could provide a legal guideline on how best to legally utilise the nominee arrangement, and avoid the pitfalls.[/COLOR][/QUOTE]She is in the process of writing something for her website. She mentioned previously as getting your name on the certificate as the loaner of the money for the property.[COLOR=#FF0000][I][/I][/COLOR]
davita
[I] She mentioned previously as getting your name on the certificate as the loaner of the money for the property.[/QUOTE]I recall this idea was addressed on 'Expat Indonesian forum' and, whereas it may constitute a contract between nominee and foreigner, it cannot circumvent Hak Milik ownership. Also, there was some comment about the legality of a foreigner becoming a money-lender without permits to do so. If the contract has a proviso for profit to be made from the contract...that would constitute being a money-lender.IMO it raises the spectre of someone borrowing the money to become a nominee title-holder, without such 'capital gain' proviso. Then say the value of property doubles .....the nominee could sell, pay back the loan, and pocket the rest.....legally.I'm not sure of the outcome of this debate, and cannot search archives as I'm no longer a member of said forum, but worth an investigation.
spicyayam
We already know foreigners cannot own land in Indonesia. That fact is indisputable. It doesn't take a lawyer to realize the obvious risks of buying the property in another person's name. If you do however go down that path then you should at least do what you can to protect yourself as much as possible. It is legal to lease however which is what the OP intends to do. Just because it is legal however, doesn't mean you cannot run into problems with the lease agreement, so I think it is prudent for anyone to get the agreement checked out thoroughly, including when you sign the actual contract.
Fred2
you can be a bank or a loan shark with lots of headaches. I would go the loan shark, :icon_eek:
Markit
I recall this idea was addressed on 'Expat Indonesian forum' and, whereas it may constitute a contract between nominee and foreigner, it cannot circumvent Hak Milik ownership. [COLOR=#ff0000]How would loaning money to a "friend" circumvent Hak Milik? Equally it also doesn't make me a professional money lender. As the loaner on the certificate you also have the right and duty to be informed if the property comes up for sale and if you hold the land certificates in your possession the "friend" will be unable to sell the property even if its price increases a hundred fold as no buyer would consider paying for it with your name as unresolved debtor since this would not give him a valid title. [/COLOR] Also, there was some comment about the legality of a foreigner becoming a money-lender without permits to do so. If the contract has a proviso for profit to be made from the contract...that would constitute being a money-lender. [COLOR=#ff0000]What contract would have a proviso for profit taking/making unless you include some spurious percentage repayment plan, but why would you?[/COLOR]IMO it raises the spectre of someone borrowing the money to become a nominee title-holder, without such 'capital gain' proviso. Then say the value of property doubles .....the nominee could sell, pay back the loan, and pocket the rest.....legally. [COLOR=#ff0000]He can't sell it without the certificate. THE OWNER KEEPS THAT TUCKED IN HIS BVDs. The "friend" can't get copy of the certificate even if he lists it as stolen without you being informed if your name is on the original as mortgager/loaner. [/COLOR]I'm not sure of the outcome of this debate, and cannot search archives as I'm no longer a member of said forum, but worth an investigation.[/QUOTE]Hell, if you really want to go "belt and braces" secure then do the above AND make yourself a 100000 year lease agreement with the "friend".
davita
No need to get all riled up with me Markit...I'm only recalling some details of the fierce debates on the subject of mortgaging/lending money to a nominee that I read on the 'Expat Indonesian Forum' when I was a member. If you wish to raise your points maybe you should join that forum and search for those threads....and argue there.FWIW I've always maintained that there are NO provisions in the nominee system of legal worth except trust in the nominee. All the rest are contracts or agreements added which may, or may not, be enforceable.It's also why, when spicyayam said his wife was a lawyer, that I suggested it would be wonderful to have a professional perspective.Another example of how some foreigners believe they have the system sown-up was raised in my pub recently.This guy (bule) I'd never previously met, was saying he had followed advice prior to marrying a much younger Balinese and signed for a pre-nup so they could legally buy a villa. This was consequently done in her name, as per the pre-nup, and he paid for the property from his pension capital outside of RI. Not much later she applied for a divorce and now she completely owns the villa by law. He gets nothing from the property as per the pre-nup rules. I bought him a beer and said...what would you have done otherwise and he said...."stick with a trusty nominee...if he stole the property at least there would be no emotion when I strangled him!":icon_e_surprised:
davita
OK I'm being questioned so I'll try to answer what I recalled....Q1. [COLOR="#FF0000"]How would loaning money to a "friend" circumvent Hak Milik? [/COLOR]A1. I already said that a 'loan' contract cannot circumvent HM ownership so your Q1 is only copying what I said...parrots do that.Q2. [COLOR="#FF0000"]Equally it also doesn't make me a professional money lender.[/COLOR]A2. If the loaner wants his 'loan' to be notarized then he becomes a legal lender which, in Indonesia, requires a permit. Q3. [COLOR="#FF0000"]As the loaner on the certificate you also have the right and duty to be informed if the property comes up for sale and if you hold the land certificates in your possession the "friend" will be unable to sell the property even if its price increases a hundred fold as no buyer would consider paying for it with your name as unresolved debtor since this would not give him a valid title.[/COLOR]A3. I have my Sertipikat in front of me and there is no provision for such a 'loan' statement to be attached...the Sertipikat only has the cancelled previous owners and the current owner's name and details and dated when the transaction took place.....witnessed by the notary. Q4. [COLOR="#FF0000"]What contract would have a proviso for profit taking/making unless you include some spurious percentage repayment plan, but why would you?[/COLOR]A4. Many nominee structures are written with the nominee receiving compensation for his/her efforts or a commisssion when the property is sold. Or both.Q5.[COLOR="#FF0000"]He can't sell it without the certificate. THE OWNER KEEPS THAT TUCKED IN HIS BVDs. The "friend" can't get copy of the certificate even if he lists it as stolen without you being informed if your name is on the original as mortgager/loaner.[/COLOR]Q5. I have no experience but some on that forum said it was easy to get a Sertipikat copy. Any agreements are written on the Akta Pernyataan (Declaration Document) or Salinan Akta Jual Beli (Certificate of buy/sale). Which are different documents to the actual Sertipikat.
Smoke
Another example of how some foreigners believe they have the system sown-up was raised in my pub recently.This guy (bule) I'd never previously met, was saying he had followed advice prior to marrying a much younger Balinese and signed for a pre-nup so they could legally buy a villa. This was consequently done in her name, as per the pre-nup, and he paid for the property from his pension capital outside of RI. Not much later she applied for a divorce and now she completely owns the villa by law. He gets nothing from the property as per the pre-nup rules. I bought him a beer and said...what would you have done otherwise and he said...."stick with a trusty nominee...if he stole the property at least there would be no emotion when I strangled him!":icon_e_surprised:[/QUOTE]Davita seems to me he did not do it properly :grumpy:[url=http://www.wijayaco.com/index.php/services/9-prenuptial-agreement-]Prenuptial Agreement[/url]legal solution to get around the issues that have been around since 1960. The Basic Property Law imposed legal constraints in property ownership for an Indonesian married to a foreigner. Furthermore, referring to the Marriage Law assuming joint property ownership in every marriage registered under Indonesian laws, conducted by Indonesian(s), or voluntarily submits to the Indonesian legal system. The joint property ownership requires consent from your spouse in the event you are performing any legal action in relation to the marital property.[/QUOTE]
davita
Davita seems to me he did not do it properly :grumpy:[url=http://www.wijayaco.com/index.php/services/9-prenuptial-agreement-]Prenuptial Agreement[/url][/QUOTE]I don't understand Smoke...what is it you claim this guy didn't do properly and what do you, or your incomplete copy/paste insert suggest he, or any other WNA, should have done?
Smoke
I don't understand Smoke...what is it you claim this guy didn't do properly and what do you, or your incomplete copy/paste insert suggest he, or any other WNA, should have done?[/QUOTE]lets add an important missed step did the RI spouse have a KTP card noting they were single or divorced( with legal divorce degree) prior to the legal marrage along with the prenup? Was the RI Spouse's KTP changed to Married after the legal marriage and prior to Jointly buying property in RI ?If when she bought the property ( and with Bule Spouses pension ( or any other funds from the Bule)) she had a KTP UNmarried or KTP divorced she bought the property They did not !dotting the I's and crossing the T's is as important as the prenup ( if it is written properly and not a "sample" agreement . Each prenup should be written for each Spouse's requirements. Each Bule and every RI local has different requirements .This is my opinion through reading many articles/posts etc along with personal interviews of a few notarys. Just cause the "bule" said they had a prenup means nothing maybe the prenup was predated maybe alot more to the story
davita
lets add an important missed step did the RI spouse have a KTP card noting they were single or divorced( with legal divorce degree) prior to the legal marrage along with the prenup? Was the RI Spouse's KTP changed to Married after the legal marriage and prior to Jointly buying property in RI ?If when she bought the property ( and with Bule Spouses pension ( or any other funds from the Bule)) she had a KTP UNmarried or KTP divorced she bought the property They did not !dotting the I's and crossing the T's is as important as the prenup ( if it is written properly and not a "sample" agreement . Each prenup should be written for each Spouse's requirements. Each Bule and every RI local has different requirements .This is my opinion through reading many articles/posts etc along with personal interviews of a few notarys. Just cause the "bule" said they had a prenup means nothing maybe the prenup was predated maybe alot more to the story[/QUOTE]And maybe it was written on the back of a fag packet. I don't know much as he was a stranger...the guy was devastated and needed a shoulder...and a Bintang! I'm posting to indicate some of the potholes that we may be unaware of and how a professional perspective would be useful.I agree that all contracts, agreements or pre-nups should be analyzed to agree with requirements. Some just trust the notary or lawyer to ensure those are complied with but....this is Indonesia.....where interpretation of law is aft agley!Let us assume none of your red-herrring encumbrences were in place and the married couple complied with all regulations. The RI spouse (female) had no assets and her WNA husband did and they wrote a pre-nup to ensure they could, in future, own land under HM title.... a pre-nup permits that. Subsequently, if they divorced, the pre-nup would say that property was legally hers. Other assets could be legally divided but NOT the HM land title...as that was protected by the pre-nup now owned by the WNI partner.
Smoke
Let us assume none of your red-herrring encumbrences were in place and the married couple complied with all regulations. The RI spouse (female) had no assets and her WNA husband did and they wrote a pre-nup to ensure they could, in future, own land under HM title.... a pre-nup permits that. Subsequently, if they divorced, the pre-nup would say that property was legally hers. [COLOR="#FF0000"]Other assets could be legally divided but NOT the HM land title...as that was protected by the pre-nup now owned by the WNI partner.[/COLOR][/QUOTE] not true in the prenup there is no after marriage land titles no way to include it since they do not exist since you have not jointly bought them till after
davita
not true in the prenup there is no after marriage land titles no way to include it since they do not exist since you have not jointly bought them till after[/QUOTE]I wish you would write proper sentences Smoke so we could all understand your point.Let me re-iterate mine...The pre-nup used by mixed-marriage couples in RI is to circumvent the agrarian law that prevents WNA from land ownership, which, otherwise, by marriage law would confer 50/50 ownership. I know that pre-nups are available for all Indonesians but this is rarely applied and usually for other purposes than mixed-marriage/Hak Milik (HM).All other assets in a mixed marriage do not necessarily require a pre-nup as marriage law says they are equal. Therfore...even in a divorce in a mixed-marriage other assets i.e. cars, motorbikes, furniture, utensils...you name it.....are legally dividable.With regard to the WNI spouse purchasing HM land after marriage I'd think the Notary could include that into the pre-nup agreement....but I'm not familiar and can be corrected on that.I am witness to a friend whose WNI wife died and he had to sell her property within 12 months. Fortunately, he didn't live in it and just conferred it to his wife's family.....who did live there.:cupcake:
