Can a Hak Pakai be cancelled if the foreigner ceases to meet the requirements?

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factgasm

New Member
I understand that under the present rules if a foreigner wants to hold a Hak Pakai there are a number requirements, such as:

• The foreigner must hold a KITAS or KITAP.
• The foreigner must be resident in Indonesia.

So if, during the time the foreigner holds the Hak Pakai, he or she ceases to meet these requirements can their Hak Pakai be made void?

Consider this example:

• A foreign man obtains a Hak Pakai for a property in Bali and lives in it for several years.
• However due to his dubious lifestyle and business practices he becomes bankrupt in his home country.
• His bankruptcy prevents him from leaving his home country for a decade.
• During this time his KITAS/KITAP expires. His house in Bali is left locked-up and abandoned, tended just once a week by his caretaker.

In this example would the foreigner cease to qualify to hold his Hak Pakai (because his KITAS/KITAP expired and he is no longer resident in Indonesia)?
 
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It is a good question. I will try to find the answer and let you know.

And welcome to the forum!
 
I have a document that I can send which gives an overview of property laws. It basically says for HP it says foreigners must reside/be domiciled in Indonesia. If this and other conditions are not met, then you have one year to sell.

Holders of right to use who no longer fulfill qualifications to hold right to use are required to release or transfer their rights to a qualified party within period of one year. In event of failure to release or transfer within one year period, right to use becomes void as matter of law with condition that rights to other parties will be preserved.
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The legislation is GR41/96 which is covered in Bagian 2 Section 3 of Kitab Undang Undang Agraria Dan Pertanahan from pages 90 to 96 - a book I bought this very morning!
 
spicyayam said:
I have a document that I can send which gives an overview of property laws. It basically says for HP it says foreigners must reside/be domiciled in Indonesia. If this and other conditions are not met, then you have one year to sell.
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Thanks very much indeed for sending me the document.
 
If your gardner keeps the place tidy, you pay all your taxes & utilities ???? the legal part won't come into play unless you have pissed someone off.
 
As things stand, your Hak Pakai would only be cancelled if it came to the BPN's attention that you weren't complying with the rules, but if the BPN ever went through an exercise comparing records with the Immigration Dept (such as sharing electronic databases) they would have a systematic method of pinpointing transgressors.

From what I have been told Hak Pakai cancellation is rare but it does happen and Indonesians rather enjoy seeing non-compliant foreigners lose their properties.
 
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In my experience most Indonesian cannot understand why we cannot buy land. I cannot imagine two government departments sharing information in Indonesia. Have you ever tried to transfer rego from one city to anther? no computers between police departments let alone government departments.
 
yes it is possible, usually abandonment can be the reason but it is a very rare case.
No one is going to do anything unless someone reported it to the authority and ask for it to be cancelled
 
Just to add a further point:

A Hak Pakai can only be cancelled if (1) an underlying Hak Milik exists on the land OR (2) the Hak Pakai is on state land.

Otherwise the Hak Pakai is safe.
 
I don't understand. Every leasehold (Pakai) has to be based on a freehold (Milik) title from somewhere. You can't have a leasehold title on a piece of land that doesn't have a freehold title to back it up. If the land isn't freehold then it can only be public land. There is not third way as far as I know but I'm willing to learn...
 
I thought that too, but I have just spent half an hour thrashing this out with the Head of the BPN Denpasar, Bpk Gede Pujana.

According to him if someone (Indonesian or foreigner) buys a property using a contract of sale and purchase ('akte jual beli') they can then have the underlying Hak Milik cancelled, leaving them owning it outright albeit for a limited period, typically 25 years, with a Hak Pakai. I was taken aback by this news.

It therefore appears there are three ways a Hak Pakai can be held:

(1) On top of a Hak Milik held by an Indonesian.
(2) On state land.
(3) By itself, albeit for a limited period.
 
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I don't believe leasehold is really a good translation of Hak Pakai. My understanding is that if you change to HP from HM, there is no "freehold" owner.
 
In example 3 who would the buyer buy the property from? Either from the previous Hak Milik/Pakai owner or it was public land - there is no land without a previous owner. HP is always for a limited time.
 
Markit said:
In example 3 who would the buyer buy the property from? Either from the previous Hak Milik/Pakai owner or it was public land - there is no land without a previous owner. HP is always for a limited time.
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Yep, that appears to be the case: If you convert Hak Milik to Hak Pakai, there is no Hak Milik on the property anymore.
 
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Markit said:
In example 3 who would the buyer buy the property from? Either from the previous Hak Milik/Pakai owner or it was public land - there is no land without a previous owner. HP is always for a limited time.
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One example could be someone who owns the Hak Milik and wants nothing more to do with the property.

Thing is though, is that the beauty of owning a Hak Milik is that the Hak Milik holder can grant permission to someone else (Indonesia or foreigner) use of their land (Hak Pakai) for say 25 years and when that Hak Pakai expires (and isn't renewed), the land returns to the Hak Milik holder by default.
 
factgasm said:
One example could be someone who owns the Hak Milik and wants nothing more to do with the property.

Thing is though, is that the beauty of owning a Hak Milik is that the Hak Milik holder can grant permission to someone else (Indonesia or foreigner) use of their land (Hak Pakai) for say 25 years and when that Hak Pakai expires (and isn't renewed), the land returns to the Hak Milik holder by default.
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There is a distinction between 'Hak Pakai' and 'Leasehold' in Indonesia.
Facto has it correct...if a title holder of 'Hak Milik' wishes to transfer that title to 'Hak Pakai' it will be registered in the Government Title as such and it can be recovered later to 'Hak Milik'
A leasehold doesn't go through any Gov't titling officially...it is a contract between the owner of property and the lessor..... and is notarised.
 
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