davita
1 : yes, I was sitting right next to them when the contracts were signed.[/QUOTE]I'm sure that will be very useful information for many others here Gilbert so could you please therefore clarify...1. The owner of the 'hak milik' title is your minor child?2. The guardian is your WNI wife?3. You have a pre-nup agreement?If confirmed was there any clause associated with title, should your child, when of age, choose to be WNA?I'm not trying to be personal Gilbert so ignore my questions if you feel uncomfortable......but it is the first I've heard and good news to know.
gilbert de jong
1: no, I have no children ( well not to my knowledge that is, hahaha)...the owner of the hak milik is the under aged son of a dutch friend of mine2: the guardian is his WNI wife and mother of under aged son.3: they have no pre-nupThe only reason I was there was because I introduced them to the notaris, I did that (introduce them ) because I had witnessed a similar case at that office but in that case both parents were WNI and putting a title in their underaged daughters name.Yes, there was some sort of 'clause' or 'paragraph' in the contract, don't remember word for word but it said something like that if the law hasn't changed by the time the kid reaches the age when he needs to choose between WNI or WNA, and he chooses to become a WNA he has the responsibility to sell his rights to the land if not done within 12 months the land will fall into government hands.
davita
Thanks for your post #22 gilbert...I'm sure that is good news for others to contemplate if they want to buy and need to use this system.The only downside I see in your Dutch friends play is if either the child dies or the mother dies...this would not only devastate the family but might cause title property legal implications.Do you know if there was any clause or demand in that regard?
mat
We tried to put land in the name of our son, [even with his mother signing] and were told by our notaris that it was impossible until the boy reached the age of 21. I'm not surprized though, different notaris will do different things.
gilbert de jong
@ davita....I have no idea if they have a clause wich would cover that, but I think the notaris would have covered that too...I will ask them though. @mat...change notaris, like you say...different notaris will do different things. (Off topic : By the way, why did you put up a gate ?)
mat
The road was being used by the local youth as a night venue, lots of litter, damage to plants, fruit stolen and complaints from neighbours about noise from the road being used as a hill climb. The gate doesn't stop people only vehicles.
Markit
I keep reading on the forum when people aren't happy with the job various notaries have done the advice to "change notary". This scares me to death! 1) By changing notary you don't actually change the law governing your transaction. 2) By changing notary to something or someone more "agreeable" you are causing the notary system to evolve into an "agreement" system that is focused on pleasing the client [I]without[/I] reference to the law. 3) This brings an already disreputable system into further disrepute and makes [U]any transaction[/U] not worth the paper it is written on. Are you suggesting that we all go out looking for a notary that will wright down any damned agreement we can think up? I'm sure I can find one that will do exactly what I want if I give them enough money but what do I have from this? A binding contract? Legal security? A good night's rest? I fear not. But what do I know?
gilbert de jong
The road was being used by the local youth as a night venue, lots of litter, damage to plants, fruit stolen and complaints from neighbours about noise from the road being used as a hill climb. The gate doesn't stop people only vehicles.[/QUOTE]hahaha, instead of complaining about their own kids, they should take away their bikeys...problem solved.because they still sometimes hang around in front of the gate, to the side of the gate just sitting around "ngobrol2"a lot of building/renovations going on since the "bantuan dana rumah" from the government was given to the locals who applied for it, costed me some pisangs too with 'helpers' from neighboring desa's
gilbert de jong
maybe, well not 'maybe', but I am spretty sure that there are many notarisses (spellcheck?) that just do as they have always done, and are not updating their knowledge about legal possibilities....But what do I know? The notaris is also legally liable for any conracts made up and witnessed by him/her... but what do I know?
balibule
The notaris is also legally liable for any conracts made up and witnessed by him/her... but what do I know?[/QUOTE]If the WNI is able to show a KTP and KK with a single status then the notaris can look the other side while signing the surat tanah. If, after a couple of years, there is a legal issue then the WNI will be at fault for committing perjury.
Markit
Having looked back at the long list of posts on pre-nuptial agreements I have a question that has not been answered: Who owns the land, and subsequent buildings, that was bought by a legally married mixed couple (he Oz, she Bali) without knowing anything about pre-nuptial agreements and hence not having one?
SamD
My wife owned (still owns) a property in Jimbaran before we were married. We do not have a pre-nup. She still owns the property because all the documents are still in her name, the problems occur when we want to sell. We were told she would have to pay some tax/fine/bribe because she married a foreigner but having read the article posted by Davita about this (sorry, don't know how to link the thread) I think all this pre-nup is a load of nonsense and doesn't have a legal leg to stand on. I could be wrong. Whatever the legalities, my wife dismisses it out of hand and doesn't really pay any attention to it - she knows there are always ways to fix things in Bali.
davita
@ post #32The problem may occur if she dies and you inherit...you will then be forced to sell to a WNI within 1 year. This happened to a friend of mine but, during their marriage, neither actually lived in Indonesia so no questions were asked....he gifted the property to his wife's sister so long as he could stay there on visits to Jakarta. So far he has only stayed with me....I'm thinking of asking for rent...:cupcake:The pre-nup idea is more fundamental for those who wish to purchase Hak Milik property after the marriage because the Marriage Law (ex pre-nup) assumes everything after marriage is joint.The pre-nup in Indonesian law was never intended for mixed marriage purpose...it's just a legal loophole that was seen by someone to contradict the Agrarian Law that foreigners cannot own Hak Milik land, even jointly. I wouldn't be surprised that lawmakers are concerned so a reform is possible...but when and how?That's why it's important those who have vested interests should help those ladies arguing the interpretation of the law in the Constitutional Court....if they prevail then a reform may not be necessary and we know how reticent Indonesian lawmakers are to even attend parliament, let alone do any work.@post#31The Minister was using the threat of 'eminent domain' to remove those property rights back to the Government. I've never heard of anyone losing those rights but the very threat would make me nervous.
Markit
So the land belongs to the woman of the mixed marriage without problems but should she shuffle off then he will have to sell within 1year?
davita
So the land belongs to the woman of the mixed marriage without problems but should she shuffle off then he will have to sell within 1year?[/QUOTE]Assuming a foreigner inherits it...exactly. But it's a good point because it may be possible to have a WNI child inherit.
BKT
Assuming a foreigner inherits it...exactly. But it's a good point because it may be possible to have a WNI child inherit.[/QUOTE]A WNI child can inherit it, problem is most mixed kids have duel citizenship which rules them out
Markit
Why does that rule them out? They are Indonesian and whatever else too, but in the first instance, Indonesian and therefore can rightfully own property here. Upon achieving their 18th birthday they will have to choose which they want to be, but they could choose Indo and there would be no further problems or?
Atlantis
Why does that rule them out? They are Indonesian and whatever else too, but in the first instance, Indonesian and therefore can rightfully own property here. [/QUOTE]Hi Markit,It is unfortunately not as simple as that. Here is where the problem is:Pasal 21 UU 5/1960 ttg peraturan dasar pokok pokok agraria(1) Hanya warga-negara Indonesia dapat mempunyai hak milik.(2) Oleh Pemerintah ditetapkan badan-badan hukum yang dapat mempunyai hak milik dan syarat-syaratnya.(3) Orang asing yang sesudah berlakunya Undang-undang ini memperoleh hak milik karena pewarisan tanpa wasiat atau percampuran harta karena perkawinan, demikian pula warga-negara Indonesia yang mempunyai hak milik dan setelah berlakunya Undang-undang ini kehilangan kewarganegaraannya wajib melepaskan hak itu di dalam jangka waktu satu tahun sejak diperolehnya hak tersebut atau hilangnya kewarganegaraan itu. Jika sesudah jangka waktu tersebut lampau hak milik itu dilepaskan, maka hak tersebut hapus karena hukum dan tanahnya jatuh pada Negara, dengan ketentuan bahwa hak-hak pihak lain yang membebaninya tetap berlangsung.[B](4) Selama seseorang di samping kewarganegaraan Indonesianya mempunyai kewarganegaraan asing maka ia tidak dapat mempunyai tanah dengan hak milik dan baginya berlaku ketentuan dalam ayat (3) pasal ini[/B]. If you read article 21 of the land law pasted above, the paragraph 4 clearly rules out that anyone with dual citizenship may be authorized to hold a SHM. It is well documented that many notaris ignore the very law and regulations that they are supposed to know, which explain why Gilbert's friend was allowed to put a SHM under the name of his dual citizen kid (post #22). However it is NOT legal. You can do it, many have done it as well as many mixed couple without prenup have been able to buy and sell SHM without much trouble, but it isn't legit and it may leave you open to extortion at different level.Basically here is a translation of paragraph 4: "As long as a person holds a foreign citizenship in addition to his Indonesian citizenship s/he may not own any land with an ownership right (read SHM) and the stipulation in paragraph 3 of this article is applicable to him/her.It means that if someone acquires a citizenship other than Indonesian s/he has 1 year to sell it. Dual citizen kids are de facto excluded of the possibility to own SHM, until they release any foreign citizenship.A bit of law history. This article 21 and the whole land law have been drafted in 1960 at a time when Indonesia was trying to repossess all lands from the last dutch remaining in Indonesia. Quite a few dutch gained Indonesian citizenship through marriage but still had their dutch one and this article was intended to them. Dual citizenship as we know it now was at the time not a real legal possibility. In 1962 it was even clearly prohibited with the then Citizenship law (UU 58/1962). If you had any foreign citizenship, you were automatically loosing your Indonesian one and therefore anyone with dual citizenship was in fact not Indonesian legally. In 2006, the citizenship law has been modified, allowing mixed couples kids to hold dual citizenship but the land law still remains as it is and forbids them to be bearer of a SHM. Article 21 (3) has never been abrogated nor amended and is still very valid and used in civil court.Anyway, whatever the nationality of the kid is, I would NOT advise to put a SHM under the name of a kid who is under 18 [B]*[/B], if there is even a remote possibility that you have to sell it or even to just use it as a collateral.Article 48 of the marriage law ([I]UU 1/1974, ps 48:Orang tua tidak diperbolehkan memindahkan hak atau menggandakan barang-barang tetap yang dimiliki anaknya yang belum berumur 18 (delapan belas) tahun atau belum pernah melangsungkan perkawinan, kecuali apabila kepentingan anak itu menghendakinya[/I]), along with the Civil Code forbid parents to sell or pawn immovable assets of a kid unless if they can prove that it is done in HIS interest. If the sale is sought in order to finance the kid's education it may work. However if it is done because the couple wants to acquire a bigger house or anything not directly related to the kid, the couple may have heaps of troubles. Last, Markit, it's not at their 18th birthday (cf: your last sentence) that mixed kids will have to choose their sole citizenship, but before their 21st one. When they will remain with only 1 citizenship, as long as it is the Indonesian one, they will then be eligible to hold a SHM.[B]*[/B] or even 21, depending on what legal definition you take to define what is an underage kid. Now, back to my beer... :icon_wink:
ronb
I like the historical note. It made sense at the time, and it lives on.
Markit
Atlantis thank you for your explanation. After so many years of hearing similarly complex and convoluted explanations concerning the legalities of property ownership here in Indonesia I'm beginning to miss only one thing - where are the court cases of expats that have been relieved of their dubiously owned land or where any "nominee" has been similarly relieved of his duties and his "owners" property? Don't get me wrong but for a subject that exercises such a large and well-healed group of people you would honestly expect there to be a bedrock of case history or at the very least anecdotal evidence about solid instances where properties have been confiscated by the authorities due to ownership doubts or citizenship issues. In my 8 years here I know or have heard of absolutely nothing and please don't quote Susi Johnson at me, that is a mess from beginning to end and has only passing similarity to reality as I know it. I actually know of people that have been caught red-handed by the immigration and nothing has happened, nothing!The whole subject of Indonesian property ownership is beginning to take on for me the character of midnight ghost story that children tell around the campfire to scare each other and I also get the feeling there is a group of people that are earning very nicely, thank you, on that fear. But what do I know?
