Lawyers fees, lease prep and checks, what's fair?

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:

Davita seems to me he did not do it properly :grumpy: Prenuptial Agreement

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.

Smoke

davita wroteI 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?

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

@post #28 I agree with your post in general Spicyayam but.....I understood that, in reference to property buy/sell, the Notary must be a Pejabat Pembuat Akta Tanah (PPAT)...(A Registrar of Land Titles). Do all lawyers have such credentials?

spicyayam

No they don't. They only need a law degree. A notary has law degree plus masters. Some lawyers however may have masters. The main difference I believe is that a lawyer or advocat can represent someone in court. A notary can only be a witness.

davita

spicyayam wroteNo they don't. They only need a law degree. A notary has law degree plus masters. Some lawyers however may have masters. The main difference I believe is that a lawyer or advocat can represent someone in court. A notary can only be a witness.

Thanks for that info Spicy...I learned something new as I wasn't aware Indonesian Notaries were Lawyers. In N. America a Notary doesn't even need a law degree...but property in USA is titled by insurance, just in case there is doubt about its ownership. So the OP was smart to get either another Notary or a Lawyer to check everything out.

davita

Smoke wrotelets 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

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.

davita

Smoke wrotenot 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

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:

Smoke

davita wrote 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. [COLOR="#FF0000"][COLOR="#FF0000"][COLOR="#FF0000"]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.[/COLOR][/COLOR][/COLOR]

davita wroteI 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:

now that you explained the fisrt part better Yes it is jointly thiers and "bule" if wife dies has 12 months to change to a legal RI. in a divorce the Wni would have to buy out the Bule or sell the land and split the money . now to actually open up a can of worms .. the Bule after marriage buys a few vehicles which they put in the SpousesWNI name . what stops the WNI from selling them while the Bule is away ? not a thing legally but with property you are "semi" protected

ferdie

Correction, lawyer and notaries both has Law Degree, but they all has different advanced degree for their profession. Lawyers have to pass the lawyers bar and the notary has their own study and test, before they can be registered as a notary. A Notary can be a PPAT but not always, pick the one with the PPAT tittle on their office, non-PPAT will use the service of PPAT notaries for a lot of process

davita

Smoke wrote1. now that you explained the fisrt part better Yes it is jointly thiers and "bule" if wife dies has 12 months to change to a legal RI. 2. in a divorce the Wni would have to buy out the Bule or sell the land and split the money . 3. now to actually open up a can of worms .. the Bule after marriage buys a few vehicles which they put in the SpousesWNI name . what stops the WNI from selling them while the Bule is away ? not a thing legally but with property you are "semi" protected

1. In a pre-nup the Hak Milik (HM) property belongs to the WNI and CANNOT be jointly owned. It may be inherited if the WNI spouse dies but the WNA then has 12 months to dispose. 2. In a divorce the WNI has TOTAL possession and doesn't have to do anything. The WNA can go to court to attempt to retry his pre-nup....good luck with that. 3. No idea as this doesn't come under any laws that I know concerning mixed-marriage...the same could happen to married Balinese.

davita

Smoke is apparently too busy to continue this debate and prefers the closed PM route...however, he did offer a link in a previous post which is informative and I copy/paste... "As for mixed-marriage couples in Indonesia, a prenuptial agreement is highly recommended. This is the ultimate 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. [COLOR="#FF0000"]As foreigners are not allowed to own property in Indonesia, such consent cannot be retrieved because the foreign partner is not in the legal position to give it to his/her spouse in the first place.[/COLOR] This makes perfect sense. So, you're stuck between the statutory requirements for consent, and the ineligibility of your foreign partner to produce it for you. This is the delicate situation that must be overcome and anticipated by your Indonesian Prenup. The last thing you want is to have legal complications with the property ownership and then end-up (loosing)sp? 'my parentheses' the lot." It can be seen from my red marked sentence..... 'joint property ownership consent' cannot be given as the foreign spouse is not in a legal position to give to his/her spouse in the first place. This is the reason that HM property must be severed from the WNA, by a pre-nup agreement, and NOT considered JOINT under the Marriage Law.

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