Buying land husband balinese

[DenpasarHouse]

1. No Pisang...you are a foreigner so there is no way you can own freehold (Hak Milik) land in Indonesia....no way. If your husband buys the land without declaring he's married to a foreigner he is taking a risk. I doubt if anyone will bother but, in the future, if someone malicious found out.....they could cause you guys some damage.

2, If you entirely trust your sister-in-law it would be the cheapest way to convey the land from the seller to her. She will be the owner but statements can be drawn up to protect your and your hubbies rights. This will not prevent her from denying those contracts, if she turned greedy or nasty, but you would be able to take her to court over non-compliance of a legal contract.

If you decide to go this route please come back here as I know many have done this and can give more opinions and advice.

Sorry Davita, I don't think this is true. Any statement/contract you draw up that attempts to circumvent Indonesian law is not valid and, as I said, is a signed and notarised confession of your attempt to do so.

That doesn't mean it won't actually work, it just means that technically it's not valid.

 

[pisang]

Ok so we will just buy The land in husbands name and then register the marriage. Atleast I have a small shot at being able to sell it if he passed before me or pass it to our son. That or in sis name but take a risk I will lose it all. It's not a lot of money but still would like to know it's still an investment for us all

No we haven't lived in Bali together well only for 8 months before moving to Aus. We won't be living there until we are old so good luck to him then haha. We will be using it as our place to stay when visiting for short or long stays (month or so)

 

[spicyayam]

The pre-nup requirement has been debated here and on other forums many times and even some notaries/lawyers say it is not required. Many mixed couples don't have one but still have no problems buying selling/property here. Many Indonesians believe they have every right to buy property in their own country even if they are married to a foreigner.

If you plan on living in Indonesia some time in the future, then I think it would be a good idea to register your marriage here, so you can take advantage of the spouse sponsored visa. Also even if your son doesn't have plans to live immediately in Indonesia, I think it is a good idea to get dual-citizenship. He can have 2 passports until he is an adult and then can decide. Also, the laws for dual citizenship may change in the future.

If you are buying some million dollar property perhaps more caution is needed, but if you are buying a couple of are in your husband's village for possible retirement in Bali in the future, then I wouldn't be too stressed.

 

[davita]

Re: post 20/21

A Hak Milik (freehold) property has three component parts when conveying without mortgage...

1. Sertipikat (title certificate)
2. Akta Jual Beli (bill of sale)
3. Akta Pernyataan (deed statement)
These are the same components whoever is buying/selling....foreigner or local.

The notion of a "nominee system' is not even recognized...it's a figment of realtors advertising. The person whose name is on the Sertipikat is the rightful owner...end of story.

The Akta Pernyataan is simply a statement of intent and can include anything the buyer/seller wishes to contract to each other...it has nothing to do with foreigners. It can be a contractual arrangement where the seller, once he gets the money for the sale, will paint the house...anything like that.
As DPH observes..if Notaries wish to add to the statements so a foreign buyer might find some consolation as to his rights they may but, anything that can circumvent the ownership rights could be seen as an illegal act. I've never heard where such statements have been contended in court and opine they would be thrown out as invalid statements....if contended.
This doesn't mean that a foreigner cannot have some stated arrangement with his 'nominee'. Mine is simple...he contracts, coupled with his heirs and successors, to permit my wife and I to freely live in 'his' property in perpetuity. If that was later negated I would have cause to sue as he did not comply with the contract...but that would be my only compensate.

There is nothing in RI property law that includes anything concerning foreigners axcept the Agrarian Law which stipulates only Indonesian Citizens can own Hak Milik property. Therefore, all the opinions expressed here and elsewhere are just that...opinions....until tested.

That's what I inferred in an earlier post about trust and risk.

 

[DenpasarHouse]

The reason everyone is so confused on this simple issue is that the Indonesian constitution and Agrarian law forbids the OWNERSHIP and CONTROL of Indonesian land. In fact, correct me if I'm wrong, it actually only mentions control and not ownership (forbidden to own is just implied). Whenever you make an arrangement, no matter how superficially legitimate, to CONTROL land, your arrangements are automatically invalid.

Frankly, every person with a nominee arrangement has been lied to (or at least received incompetent advice) by the very people they've hired to represent their interests.

It's a little unnerving to realise you've paid people to create documents that 100% prove your intention to break Indonesian law.

However, what's the chance this will all blow up in your face? Actually pretty low. But it's a lot more likely now than it was a few years ago.

 

[Markit]

However, what's the chance this will all blow up in your face? Actually pretty low. But it's a lot more likely now than it was a few years ago.

Why do you say that?

 

[DenpasarHouse]

Because of this:

Bali News: Paradise is Not for Sale to Foreigners

Property transactions in Bali are down and uncertainty in the property sector seems to be running at record-high levels. Against this backdrop of uncertainty, lawyers and notaries in Bali continue to fashion elaborate multi-part contracts intended to cede something tantamount to “land ownership” based on long term leases, secured by fictional irreversible loan agreements and irrevocable powers of attorney.

Meanwhile, evidence and unfavorable court decisions are mounting to show that such legal constructs are little more than a flimsy house of cards unlikely to stand up to even the most modest legal challenge. First and foremost, it is generally accepted in all legal jurisdictions that agreements specifically fashioned to circumvent the national law, in this case the absolute prohibition against foreign land ownership in Indonesia, are ipso facto both illegal and invalid. Over the past 1-2 year government officials have publicly warned that nominee arrangements are merely “back door” camouflage for foreign ownership and therefore essentially illegal and subject to legal reversal.

Earlier this year, the Agrarian Affairs Minister, Ferry Mursyidan, warned that efforts were underway to take an inventory of land held "illegally" by foreigners in Bali and Lombok preparatory, it is presumed, to seizing these properties and putting those lands back in the control of Indonesian nationals.

Add to this stewing cauldron the fact that it now appears the “absolute power of attorney” documents regularly issued by nominees at the request of notaries and lawyers in order to prop up shaky ownership structures are, at best, highly suspect. A Ministerial Decree issued in 1982 declared that Powers of Attorney in matters involving landed property may not be granted and are therefore subject to revocation at any time. One legal observer told Bali Update, that such powers of attorney “amount to a signed confession of intent to circumvent higher Indonesian law, including the Constitution and could be used against the Attorney (The “ Grantee”) in Court.”

Efforts to fashion Powers of Attorney that survive their creator and pass responsibilities and obligations onto the heirs of the original Grantor are also not recognized in Indonesia or, for that matter, in most international legal jurisdictions.

And this too:

Foreign Property Ownership Under the Magnifying Glass in Indonesia - Indonesia Expat

 

[davita]

Here is the actual Agrarian law as translated by the RI gov't. Article 21 is relevant.

http://faolex.fao.org/docs/pdf/ins3920.pdf

 

[spicyayam]

unfavorable court decisions are mounting

Any evidence to back this up? As far as I am aware, there is no public record of court cases here and only high profile ones get reported in the media. So how can you come to a conclusion such as this?

My wife's colleague for example represented a nominee and lost the case. The foreigner had their name on the cert as creditor and the judge requested the owner of the certificate to be changed.

 

[davita]

My wife's colleague for example represented a nominee and lost the case. The foreigner had their name on the cert as creditor and the judge requested the owner of the certificate to be changed.

I don't follow you spicy...if the nominee lost the case and the judge ordered the Sertipikat to be changed....changed to what? Can you elaborate?

 

[spicyayam]

Change to a different owner! Of course I am just as surprised as anyone to hear these kinds of stories. It is a shame the cases aren't reported more widely.

I think the mistake people make on forums like this and others is that they believe the law is applied to the letter in judging a case. Also Indonesian courts do not follow precedents, so just because one person had a problem it doesn't mean others will have the same problem.

 

[davita]

Change to a different owner!

Do you mean the foreign creditors name was removed to leave the original name in place or the nominee's name was removed or changed to another?

 

[spicyayam]

I believe the nominee's name changed to another. I am not sure what the dispute was about, I guess a disagreement about money. I can try to find out more details.

 

[davita]

I believe the nominee's name changed to another. I am not sure what the dispute was about, I guess a disagreement about money. I can try to find out more details.

Yes, please spicy, as it's the only case I've heard of that has been to court...excluding Susi (complex case) and my friend's wife whose brother stole her inherited half-share of a house because she became a WNA.

 

[spicyayam]

My wife just told me the story again and she said the foreigner had property through a nominee and then got married to a local, so wanted to change the certificate from the nominee to their spouse. The court agreed to allow the foreigner to change owner.

The nominee however is now appealing to a higher court.

 

[davita]

Thanks for the clarification Spicy...sounds complex and a bit like Susi's story where she wanted to change from her nominee to a Hak Pakai.... until the nominee stalled.

IMO I would say that the nominee, in the above case, actually won....so far. If I were him I'd sell fast before the appeal.