Cisco Kid
Morning Fred 2,
Just another way of saying, we aim to please.
Have a nice day...
Fred2
babrams@balisafeharbor.co wroteThis turns out to be useful info.
I just logged onto the percaindonesia site
and found the ConCourt case no.
69/PUU-XIII/2015, indicating the
complaint contesting Act No. 5 of 1960
was only filed sometime this year.
So my staff is now busy obtaining a
docket sheet indexing all filings in chrono.
Am also getting my hands on Act No. 5.
Can't thank you enough for giving
me the link to the site.
I'll take it from here, feedbacking you
(& by extension, all readers) along
the way.
This is real progress. Much appreciated.
Regards,
balisafeharbor
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Please forgive me but are you stating that you do not known what
No. 5, 1960
Basic Regulation of Agrarian
ITS THE F!!KING land laws for Indonesian
you are telling people how to get around them
Sorry but I must have missed something here????????
Markit
In all the many, many stories of land purchases and legal rights that I've run into in my 8 years living on Bali I have to say as loud as possible: not one, NOT A SINGLE FECKING ONE has fallen into trouble or been dissolved due to legal issues.
NOT ONE.
Many, [B]if not all[/B], came apart due to the blindness (tunnel vision) of one or all of the Bule parties to the deal.
PROSPECTIVE BUYERS/BUILDERS OF BALINESE VILLAS: TAKE NOTE!
1) Make sure your partner (I mean the one you're sleeping with) is as committed as you are.
2) Make sure your country of origin has no more hold on you (children, grandchildren,pets, parents, etc.)
3) Make sure your finances are valid (plan as much as you can afford to build, then build half that - oh, excepting the pool make that as large as you can afford)
4) Just because Made says you are part of his family don't give him $200,000.00 to buy that nice plot of land for you.
I could go on, but you get the idea.
Cisco Kid
I think we need to recognize that every case is different. Also significant is that Indonesia
unlike anglo saxon jurisdictions is civil, not common law. Among other things, this means
that there is no "case precedent" here. That's why every case is different. In my own
community property matter, at the risk of oversimplification, as a foreign spouse who purchased
the property during the marriage, the property was not physcially split, but my 50% interest was
protected in an investor interest sense. I had a legal right (there are no equitable rights in this
Country) to half of the value of the land. Being a non-citizen, I could never own half of the divided
property in my name.
davita
If PerCa prevail in their application to the MK...WNI [B]will[/B] be permitted to own Hak Milik land in their own right.
The next question then is of community property if 1. Divorce or 2. Death of the WNI.
1. Community property doesn't need to be precisely divisible...fancy cutting the family car down the middle. It is normal, in any jurisdiction, for community property asset splits to be agreed. In RI the Hak Milik property would be assured to the WNI so an offset would have to be agreed by both. Generally, if not agreed and goes to court, the wife gets the house and the husband gets the dog and the debt.:icon_e_biggrin:
2. Currently, this is the case anyway. If a WNI has inherited Hak Milik, before marriage, and dies, and the property reverts to the WNA it has to be sold or dispensed within 1 year. The same could apply in this case. An alternate would be to have a trusted relative 'nominee' sign a right to use to the WNA...or simply change the title from Hak Milik to Hak Pakai.
Cisco Kid
Hi again Fred2,
As you may already know, according to the Indonesian Law on Hak Tanggungan, Hak Tanggungan is a security right encumbered on the Right on Land as mentioned in the Law No. 5, the Agrarian Law of 1960 (discussed yesterday). I'm no Indonesian lawyer, but according to Indonesian legal practitioners with whom I've discussed the subject, Hak Tanggungan and its anglo saxon rough equivalent, a mortgage, have key features in common. Both involve a transaction between the two parties: someone who provides a loan (creditor) and someone who should pay the debt (debtor). Both terms indicate that land is used to guarantee the transaction. For the security interests of overseas investors in land development, the key feature is that their names are actually recorded on a sertifikat hak milik as mortgagee holders of Hak Tanggunan. They can then possess the original certificate and BPN will not allow the recorded Indonesian owner to sell the property as long as the investor has Hak Tanggunan.
When the foreign investor surrenders his Hak Tanggunan, derives from the terms of the underlying loan agreement. As previously explained in this Forum, this is all 100% legitimate.
That's my 2 cents worth....
BSH
Cisco Kid
Morning Fred2, Since this kind of thing is done by our notaris, I suggest you should find the
answer from any good notaris, SH/PPAT. And the reality is, every deal is different.
Markit
Fred2 wrote
So what do you write in the deed that would make the Debtor default. If he never defaults he always owns the land, or if he gets a second Hak Tanggungan & pays you out??? he can never lose?????
Your nominee can never get a new mortgage on "your" property as long as you hold the original land certificates. He can declare those as stolen or destroyed at the ministry but since the original (on record at the land ministry) has the mortgage loan along with your name annotated as lender that will be reproduced along with the "new" certificate.
I think/hope.
Cisco Kid
There are apparently many other differences, but I believe the main distinctive feature for our purposes, is the one you have so well described.
Cisco Kid
what Markit says is spot-on. Glad he's spreading the good word on this basic mortgage benefit.
davita
I've no intent to argue as you guys know more about the mortgage system than I. After all, who would lend me money without a death benefit...?:icon_e_surprised:
However, this subject has been hashed many times and I recall the idea of attaching a mortgage from a foreign lender to a nominee on Hak Milik property had legal issues.
My recollection was..... to create a mortgage the lender has to be a 'registered lender' under RI law and I understood no-one was aware nor knew how to do this. Thus it may be that the mortgage attachment to the title may be illegal.
Anyone have relevant information...I've searched but cannot find.
Cisco Kid
This needs clarification. There should not be a "nominee" at all. That term smacks of a backdoor structure that
may not be outright unlawful, but could well have enforcement implications. Instead there is a capital development investment loan between the overseas land development investor and his Indonesian joint venture partner. The mortgage secures the investment of the offshore investor, making him the registered mortgagee. I have never run into a "Lender Registry", and will definitely take that up with our legal counsel at our next weekly meeting and feedback you further afterwards.
Fred2
babrams@balisafeharbor.co wroteHi again Fred2,
As you may already know, according to the Indonesian Law on Hak Tanggungan, Hak Tanggungan is a security right encumbered on the Right on Land as mentioned in the Law No. 5, the Agrarian Law of 1960 (discussed yesterday). I'm no Indonesian lawyer, but according to Indonesian legal practitioners with whom I've discussed the subject, Hak Tanggungan and its anglo saxon rough equivalent, a mortgage, have key features in common. Both involve a transaction between the two parties: someone who provides a loan (creditor) and someone who should pay the debt (debtor). Both terms indicate that land is used to guarantee the transaction. For the security interests of overseas investors in land development, the key feature is that their names are actually recorded on a sertifikat hak milik as mortgagee holders of Hak Tanggunan. They can then possess the original certificate and BPN will not allow the recorded Indonesian owner to sell the property as long as the investor has Hak Tanggunan.
When the foreign investor surrenders his Hak Tanggunan, derives from the terms of the underlying loan agreement. As previously explained in this Forum, this is all 100% legitimate.
That's my 2 cents worth....
BSH
b. Domisili pihak-pihak sebagaimana dimaksud pada huruf a, dan apabila diantara mereka ada yang berdomisili diluar Indonesia, baginya harus pula dicantumkan suatu domisili pilihan di Indonesia, dan dalam hal domisili pilihan itu tidak dicantumkan, kantor PPAT tempat pembuatan Akta Pemberian Hak Tanggungan dianggap sebagai domisili yang dipilih;
Kecuali apabila diperjanjikan lain, sertifikat hak atas tanah yang telah dibubuhi catatan pembebanan Hak Hanggungan sebagaimana dimaksud dalam Pasal 13 ayat (3) dikembalikan kepada pemegang hak atas tanah yang bersangkutan
So what do you write in the deed that would make the Debtor default. If he never defaults he always owns the land, or if he gets a second Hak Tanggungan & pays you out??? he can never lose?????
davita
In my fairly long, so far, life I've bought and subsequently sold many properties...UK (London and Surrey), Hong Kong (New territories and City), Canada (2 x Metro-Vancouver) and USA (Arizona). None of those transactions posed any problems because law in those jurisdictions is clear. However, taxation was an issue that I suffered.
Indonesian law on property is not clear, particularly for foreigners, and is risky. If not averse to some risk, and due diligence taken, then property ownership in Indonesia can be rewarding....as Markit has said.
That's the purpose of this forum.....to debate the pros and cons so newcomers to property ownership can benefit from other's experience.
davita
Re: post # 81.
As I previously said I bow to anyone with knowledge on mortgaging in RI as I have none. However, your above post seems to disagree with Adam's post # 78 on procedure.
My post about NOT having a mortgage is still relevant as I said.....'what prevents a nominee from having a copy of the title made and using it as collateral...how would I know?'
btw I have the deeds in front of me and it is definitely spelled 'Serti[B]p[/B]ikat Hak Milik.'
Cisco Kid
That's right Davita, if you don't have a mortgage, and your lawyer has not filed a blok on the land, even if you physically hold the SHM certificates, the owner could still obtain duplicates and sell the land without your knowledge with impunity.. Happens all the time.
Sorry about my spelling error.
cheers....
davita
Thanks for that BSH...I rest my case...actually I mean I rest...I'm tired having just varnished my front door.
BTW just kidding about the spelling...you have so much knowledge of the subject it was the only way I could get back at you...no offense.
davita
Markit wroteYour nominee can never get a new mortgage on "your" property as long as you hold the original land certificates. He can declare those as stolen or destroyed at the ministry but since the original (on record at the land ministry) has the mortgage loan along with your name annotated as lender that will be reproduced along with the "new" certificate.
I think/hope.
By original land certificates I assume you mean 'Sertipikat Tanda Bukti Hak' . I have mine right in front and nowhere does it have mine or wife's name. It has the previous owner and the current one 'my nominee'. There was no mortgage.
My understanding is that it would be possible for the nominee to declare this document lost, get another and use it for collateral, without my knowledge.
davita
I'm sorry but Markit did mention about a nominee and mortgage and you said "Markit is spot on.... etc" That's why I posted.
Now you mention we are not discussing nominee but a more structured ownership and mortgaging including PT or PT PMA's. I have no comment...nor clue...about that.
I agree the terminology of 'nominee' is misleading and was created by realtors...for want of a better word.
Both Markit and I have argued here that the owner of Hak Milik property is the one whose name is on the 'sertipikat' and the 'Akta dual Beli' (Bill of Sale).
I've suggested the rest is trust and belief that 'Akta Pernyataan' (Deed of Statement) which adds intent and content to those documents will hold in court if there's any dispute in the future. Attempting to circumvent the real 'ownership' using those statement deeds is where the system is questioned.
I talked with my bank manager about a loan against the 2 properties we have but (HSBC) are adament they can only lend to the SHM owners.
Cisco Kid
roger that... did my share of sanding, varnishing on my yacht for 30 years and my Pop's fishing boat before that. But my blisters are long gone now....
but for me, its a quarter century labor of love... love this Country, its people and its legal system never ceases
to amaze....
just being a nano small part of it all itself, keeps me going.
and this forum seems to attract cognoscenti from all directions, each with their own heretofore unknown authoritative input, adding up to a collective tour de force of applicable regs, opinions, examples, sources,
insights, etc.
glad to be here...
tks....
