Cisco Kid
"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)."
--> irrefutable
"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."
--> Some say "trust is good and no trust is better." I for one, do not think it is any wiser to base an important land transaction on "trust" than it would be to predicate a transatlantic crossing on the ship's lifeboat. Both are required, but for use only when all else fails...
--> That Akta might be anything from the kiss of death, to a blessing of the acquisition, depending on its content.
"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."
--> That's exactly what they'd be expected to say. But if HSBC or anyone else loans to the owner, it can be secured by recording a mortgage on the certificate at BPN.
keep rollin' in the right direction... i likes it banyak...
davita
babrams@balisafeharbor.co wrote
1.--> That Akta might be anything from the [COLOR="#FF0000"]kiss of death[/COLOR], to a blessing of the acquisition, depending on its content.
"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."
2.--> That's exactly what they'd be expected to say. But if HSBC or anyone else loans to the owner, it can be secured by recording a mortgage on the certificate at BPN.
1. I agree...yet some believe the content will protect in [B]any[/B] situation. The reality is the Akta Pernyataan is only a contract of intent. A contract is generally inferior to Law. If the nominee decided to do anything that contradicts the Akta it may offer legal option on a 'breach of contract'...but not of ownership. The problem is that some notaries have written the Akta Pernyataan to circumvent the Law....and why I agree with you on your point highlighted above.
2. That of course is a normal event available to most Indonesians. As the WNI 'nominee' [B]is[/B] the rightful owner he/she can mortgage, or use as collateral, and that will be recorded. It doesn't specify on the Sertipikat anything about the foreigner, only on the statement deed, in which the bank has no interest. As I said...I hold all those deeds in my safety box but if my nominee said the Sertipikat was missing, received a copy and went to a bank to use as a loan. How would I know?...:dejection::hopelessness:
Fred2
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.
Sorry Markit this is incorrect When Hak Tanggungan Deed is registered, you receive a Encumbrance Right certificate and the land certificate goes back to the land holder. If land holder wants to give you the land certificate so you feel warm and fuzzy that ok. The land certificate can have more than one Hak Tanggungan Deed registered to it. Who ever is the first registered Deed is paid first and goes down the line.
This is only a money transaction and you can only get your money back, you can not get your hands on the land.
Markit if you go down the Hak Tanggungan road.
Your PATT makes up the deed.
Your name, how much the loan is + interest + any terms you want within the law.
You cannot register the deed because you are not a permit resident of Indonesia, you can add someone in the deed that will act on your behalf or your PATT.
The deed is registered at Kantor Pertanahan by drawing up of land encumbrance right and records in the land book the land title which becomes the Encumbrance Right object as well as recording on the land title certificate.
You receive encumbrance right certificate as above.
To void the encumbrance right
The owner of the land pays the amount of money in the Deed
The owner of the land defaults on what is written in the Deed. You need court orders to sell the land so you can get your money back. But if you never put how much per year/ when it has to be paid by, how can the owner default on the deed?
More than one Deed can be put on the land certificate as above.
The owner can wait 10 yrs go to the bank or loan shark, pay out the deed, sell the land and villa. and have a very happy life.
Or the government decide to check land titles and finds foreigners have bank roll land title. RED flag first to be check.
Markit
The problem with all the discussions of property ownership the world over is that they get lost in minutia fairly quickly. That is what courts, also the world over, are kept busy untangling for 90% of their time.
No ownership patent is %100, not here or anywhere else. Owners or those that want to be can only cover as many bases as they can see after due consideration of all the variables.
That's what this thread is/should be about.
At the end of the discussion you should weigh up carefully your capacity for risk and loss and proceed with your plans accordingly.
As I have written many times and in many forums I have yet to see a property deal here in Indonesia go wrong due to legal issues, NONE.
I have seen too many go wrong due to personal problems.
Get you life in order first and then buy land in Bali and build your dream.
It's really, really worth the risk!
That I know!
Cisco Kid
Davita: "As the WNI 'nominee' is the rightful owner he/she can mortgage, or use as collateral, and that will be recorded. It doesn't specify on the Sertipikat anything about the foreigner, only on the statement deed, in which the bank has no interest. As I said...I hold all those deeds in my safety box but if my nominee said the Sertipikat was missing, received a copy and went to a bank to use as a loan. How would I know?"
--> The key thing for the overseas investor to do here, is to have his/her/its name recorded on the sertifikat hak milik as holder of Hak Tanggungan (or mortgagee). Once this essential step is taken by your notaris, BPN records the sertifikat with the endorsement of the bule's Hak Tanggungan rights. This prevents the Indonesian owner of record on the same sertifikat, from further pledging Hak Tanggungan rights or leasing or selling without the mortgagee's written consent. The original sertifikat hak milik remains in the custody of the mortgagee for the duration of his/her/its Hak Tanggungan rights (mortgagee). There is another more drastic step a holder of Hak Tanggungan can take. If things between the mortgagee and the owner ever degenerate into all-out-war (which should never happen), the mortgagee could retain legal counsel to file a complaint in the Denpasar District Court, with a letter to BPN, "blocking" the land, i.e., enjoining any possible sale or futher hypothecation of the land while the suit is pending. But with Hak Tanggungan recorded in the overseas investor's name, I cannot think of any reason to file a court complaint.
Fred2
Markit wroteThe problem with all the discussions of property ownership the world over is that they get lost in minutia fairly quickly. That is what courts, also the world over, are kept busy untangling for 90% of their time.
No ownership patent is %100, not here or anywhere else. Owners or those that want to be can only cover as many bases as they can see after due consideration of all the variables.
That's what this thread is/should be about.
At the end of the discussion you should weigh up carefully your capacity for risk and loss and proceed with your plans accordingly.
As I have written many times and in many forums I have yet to see a property deal here in Indonesia go wrong due to legal issues, NONE.
I have seen too many go wrong due to personal problems.
Get you life in order first and then buy land in Bali and build your dream.
It's really, really worth the risk!
That I know!
Do you honestly think someone would take a land transaction to court?????
PETER JAMES BUTLER case shows how things work in Indonesian courts or Susi Johnston
If everyone would just keep things to themselves, build the dream, keep there nominee happy, everyone's happy.
If shiiit hits the fan move on.
Cisco Kid
[b]bad news travels fast[/b]
While I couldn't agree more with what you say, for every court case that goes wrong, ther're some like mine which come out ok. Not only in this jurisdiction but everywhere else, litigation is always demanding and always a roll of the dice. Without giving any unrealistic assurances, if your back's to the wall and going to court is the only way forward: pick your lawyer with the greatest of care and based on as many bule testimonials as possible, win-win reccord, a clear retainer agreement in English, clearly defining objectives. Be sure he/she is the kind of person with whom you could hit it off socially, joke and relax. Its a bit like a marriage. Have your advokat give you copies of every document to be filed in English and then get copies of every filing translated immediately. Above all meet and communicate with your lawyer on a regular basis at least once a month while the case is pending. The list goes on and on. But you get the drift. Here, if you must litigate, engage in a "full court press" modality. This even includes profiling the judges hearing the case. Sometimes, I am engaged to monitor the progress and actions of lawyers representing bule clients which I do, but its always so demanding that I really don't look forward to this kind of thing. Despite the roar of foreign voices deploring the Indone-sian legal system, I have personally seen some surprisingly well-reasoned, well-crafted judicial opinions come out of the Jakarta & Denpasar District Courts. But arbitration's much better, if available.
davita
I have a story pertinent to this thread.
My (UK) friend's wife (originally WNI but lost to UK some 30 years ago) inherited an SHM house in Jakarta with her brother (half-half). This nice brother, recognising that my friend's wife was no longer a WNI, took her to court to 'get the whole banana'. He knew that WNA's could not own SHM property...but didn't know there is a proviso, on inheritance, for this.
My friends were living in Hong Kong then and had to travel to Jakarta often to defend their case.
Eventually they prevailed and the judges decision was 'the house must be sold within one year and the proceeds shared equally.'
To this day, 3 years at least, the brother has refused to comply with the court order and lives in the house. For my friends to complete they need to go back to court.
They are quite wealthy and really didn't need the hassle... so gave up.
They won the battle but lost the war...Indonesian style.
davita
RE: post # 89
tel522...... Welcome to the forum as I see this is you first post. Hopefully you will post many more.
Your above only copies what most regular expat members already know....we can read!
If you have useful information, or other tit-bits, please post and discuss. Most of us, already worried about the RI government's representative's ridiculous and idiotic statements....with no real content (how can anything illegal be legal).... are concerned.
tel522
Iv read with interest the thoughts of members ,
let us not forget the statement issued by the goverment march 2015 ,
The Minister said there is a great deal of land in Indonesia, particularly in tourism areas such as Bali and Lombok, that it owned (illegally) by foreign nationals.
In Bali and Lombok many foreigners control land through nominee landowners, using legally questionable powers of attorneys and fictive mortgage agreements. The Minister’s statement has many in the property sector concerned that land could be confiscated by the State or documents used to establish illegitimate foreign control of land declared invalid. The latter could create a windfall for the nominee who would then be established as the sole and rightful owner of the land.
When Ferry was asked what sanctions can be imposed on foreign nationals known to illegally own land in Indonesia, the Minister replied “there is no sanction.”
“There’s no need for sanctions, we will just divert possession of the land. We will ask if he has an Indonesian wife and divert the land to her. But, if he doesn’t have an Indonesian wife, then the land will be taken by the State,” Ferry explained.
I dont fancy my chances in court against the government
tel522
thanks for for the welcome , ya I appreciate it is a serious worry, I wondered why there was still so much discussion on this subject , when its clear as foreigners we dont have a legal leg to stand on here , the government made that quite clear in the above statement .
On another issue ,Perca mixed married group ,and the state of the court case , my wife has contact with the group , the constitutional court came out in favor of our right to own property ie the indonesian partner in the marriage loses her or his human rights , perca expects a modification of the agrarian around Christmas time , as I know more I will post.
Markit
tel522 wrotethanks for for the welcome , ya I appreciate it is a serious worry, I wondered why there was still so much discussion on this subject , when its clear as foreigners we dont have a legal leg to stand on here , the government made that quite clear in the above statement .
See, right there is where I disagree with most forum member and that's always a good reason for further discussion, although I'm not clear if that all amounts to a hill of beans in importance.
I still think that unless there's a concise and easily understandable court case where a foreign "owner" is dispossessed of "his" property and moved on by the forces of law in Bali then the nominee construct (which, after all, is purely a formalized agreement between two parties to follow a common goal) is as viable a method of land possession here in Indonesia as any other.
At the risk of boring you I will repeat: nothing is illegal unless it is stated as such in statutes that are legally binding and passed by the legislature. Pronouncements by ministers or those employed by them aren't worth the paper they are written on and there is a thriving industry her and elsewhere in SE Asia built on the concept of scaring the shiiite out of Bule land owners and last but not least, it sells newspapers.
Go and sin some more!
Markit
Cisco Kid
well said Markit. I read that comment too. I don't know about the others, but if I had to go with what
my lawyer tells me or the word-on-the-street, I know which one I'd pick....
Cisco Kid
In the words of Stephen Stills....
"Paranoia strikes deep
Into your life it will creep
It starts when you're always afraid
You step out of line, the man come and take you away..."
-- Buffalo Springfield, "For What Its Worth", 1966
DenpasarHouse
Cisco Kid
[b]a rosetta stone[/b]
The real value of this rare kind of insightful, authoritative and forceful opinion, is not that it intimidates us into acquiescense, but rather causes us to rexamine our own positions as the best guaranty of stability and endurance.
My father, a boatbuilder/shipright, always used to welcome the shipyard nay-sayers who would look at his vessel under construction and say things like "that thing will never float" or "she'll capsize top-heavy". But he took those aspersions at face value and re-evaluated his design & construction technique.
The "Devil's Advocate" arguments should never be underestimated. Prophets of Doom viewpoints should not be rejected out-of-hand.
spicyayam
I agree that it is ill-advised for foreigners to buy property in Indonesia. There are many nice places available for rent. Still, there are many reasons why someone might want to buy property here. If you want to live here for a long time, it won't take long to realize that renting here sucks. Annual rent increases of 10% are typical. You have to pay the rent upfront and good luck trying to get money back if there is any problem with the property. And you usually have to pay for any maintenance expenses.
So as long as you go into any deal knowing the risks and don't spend more than you can afford to lose, then why not. One problem I see is that people don't get advice and don't bother doing any kind of research, which is the main reason they get into trouble.
I think it is wrong to presume that foreigners will instantly lose in court. It totally depends on the circumstances of the individual case and as [USER=19113]@Cisco Kid[/USER] has pointed out, there is no case law here.
Markit
Fred2 add to that the new "laws" on alcohol sales, visa free requirements, multiple entry on VOA limits, apartment sales and beef self-sufficiency in Indonesia and when you've stopped giggling go out and buy a piece of paradise - cheap!
Because when it becomes legal to buy here expect Hawaii or Thailand - like prices.
Fred2
"Because when it becomes legal to buy here expect Hawaii or Thailand - like prices".
I will be dead and buried before Indonesia changes the Constitution
The valve of the land we have in Bali & Java just keeps going up and the tax.
tel522
.
"I will be dead and buried before Indonesia changes the Constitution"
me also ha ha !
I find a change over the last few years here in the government towards xenophobia , iv noticed it particularly in java on recent travels , I dont think there is much sympathy for a few bules and their wishs and hopes re property and land .
