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Land matters except for mining and forestry
are under the jurisdiction of the National Land Agency (Badan
Pertanahan Nasional) formed to administer all matters relating to
the Basic Agrarian Law of 1960 such as the registration of land
rights and the granting of rights and various permits to use the
land.
There are currently only two categories of land rights: a) Adat land (customary land) where the land
is not registered with the relevant land office. There are 2
individual rights and 6 community rights in this category. All
rights held under this category will eventually be converted to
certified titles.
b) Certified land, the title to which is
governed by the Basic Agrarian Law of 1960 and is registered at the
local land office. There are five principle types of land rights
held under the Agrarian Law. These are:
Right of Ownership (Hak Milik)
This refers to absolute ownership of land and corresponds to a fee
simple or freehold title in common law jurisdictions. This right can
only be held by an Indonesian citizen, not a corporate entity
whether local or foreign. Certain legal entities designated by the
government, such as State Banks, agricultural cooperatives,
religious bodies, and social foundations may hold this right subject
to certain restrictions. This right of ownership is held in
perpetuity. It can be sold, transferred, bequeathed, and
hypothecated (mortgaged).
Right to Build (Hak Guna Bangunan - HGB)
This is the right to construct a building on land for a period of 20
or 30 years (renewable for another term of 20 years). This right can
be sold, exchanged, transferred, and mortgaged, and can be held
directly by any corporate entity whether it is a local company or a
government approved PMA company.
Right to Rent (Hak Sewa Bangunan)
This is the right to use land owned by another private party (the
lesson) for building purposes. The right cannot be registered at the
land office and therefore does not exist in certificate form. The
law does not stipulate a period for such lease agreements and
whether this can be transferred or not depends on the original
agreement between the parties.
This right may be held by a foreigner permanently domiciled in
Indonesia or a foreign legal entity having a representative office
in Indonesia. It cannot be mortgaged.
Right of Use (Hak Pakai)
This is the right to use State-owned or other land by public or
private persons or entities for a specific purpose for a definite
period or occasionally for an indefinite period. This land right
cannot be sold, exchanged or transferred unless explicitly provided
in its grant or agreement and normally for a period not exceeding 10
years.
This right may be held by an Indonesian individual or entity or
foreigner permanently domiciled in Indonesia, or a foreign legal
entity with a representative office in Indonesia such as foreign
banks, embassies, etc.
Right of Exploitation (Hak Guna Usaha)
This is the right to exploit State-owned land for agriculture,
fishery or husbandry purposes for a period of up to 35 years with a
possible 25 years extension.
This right can be held by Indonesian individuals/entities as well as
government approved PMA companies. The certificate can be mortgaged.
RENEWAL OF RIGHTS
Renewal or extension of rights on expiry of the initial term is via
an application to the National Land Agency and is subject to payment
of a fee. An application must be submitted one year before expiry of
the term. Although the law is silent in regard to the period after
the expiry of the extended term/s, the consensus is that a land
right can be extended if there has been no infringement of the
conditions attached to its usage.
Procedures for Property Acquisition
All transactions of land rights must be via deeds executed before a
land deed official at the local office of the Pejabat Pembuat Akta
Tanah (PPAT) where the land is located and must be registered in the
regional office of the National Land Agency. The PPATs are privately
managed offices (usually run by a notary) authorized by the National
Land Agency to handle land acquisition matters.
Although there is no regulation that contracts have to be in
Indonesian language, we recommend having contracts and agreements
always drawn up and executed in Bahasa Indonesia to prevent later
arguments that the local partner did not fully understand the
content.
PROPERTY OWNERSHIP IN INDONESIA
Can Foreigners Own or Lease Property in Indonesia?
The straight answer to both these questions has been in the past a
clear NO. Up to now foreigners CAN NOT OWN PROPERTY in Bali or
anywhere else in Indonesia! These laws might be changed soon, but
right now (early 2000) no full details have been released, and it
has not yet been clearly defined WHICH foreigners (permanent
residents with working or retirement visa, temporary residents with
working or retirement visa, certain categories of visitors, etc)
will qualify.
The new regulation will probably apply only to those foreigners
"domiciled in Indonesia" i.e. holding a permanent residence permit
and not to foreign residents with only limited (e.g. one-year) stay
permits or temporary visitors to Indonesia. It is also not clear at
all what happens if a permanent resident loses his/her permanent
resident status for some reason (this does happen in Indonesia) and
he/she is suddenly not qualified to "own" property any more.
Even after these points have been officially clarified, foreigners
will not be able to own "freehold" property (Hak Milik) but only a
"Hak Pakai" title valid for 25 years with another 25 years
extension. However, in future it will be possible to transfer, sell,
and mortgage a "Hak Pakai".
Then, How Do Most Foreign Investors Solve this Problem?
In most cases an Indonesian citizen will hold the interest in the
property as the nominee and on behalf of a foreigner, and the title
or rental/lease contract will be made out in the Indonesian's name.
Whilst such arrangements are not strictly against the law, they are
contrary to current government policy and the spirit of the law.
Using an Indonesian Nominee
If an Indonesian acts as nominee for a foreign investor there are a
number of contracts and other documents which must be prepared by
and signed in front of a qualified notary. These include the
Purchase or Rental Contract for the property transferring the rights
from the previous owner to the nominee; a Loan Agreement for the
purchase/rental price between the investor and the nominee; and an
irrevocable and transferable Power of Attorney to sell, transfer or
otherwise dispose of the property and to represent the nominee in
any dispute regarding the property, given from the nominee to the
investor. The nominee will also be asked to hand over all original
land titles to the foreign investor.
Using a PMA Company
Although most foreigners have found the above arrangement to work
satisfactory without any problems (as long as all agreements have
been properly executed in front of a qualified notary), some buyers
prefer to have their property owned by a PMA (Penanaman Modal Asing
= Foreign Investment) Company directly controlled by the foreign
investor.
Since the investment deregulation package issued on May 19th, 1994
(Government Regulation No. PP-20/1994), a PMA Company can be 100%
foreign owned. The foreign investment may comprise both debt and
equity, but the BKPM (Badan Koordinasi Penanaman Modal under the
Ministry of Investment in Jakarta) has a rule of thumb that the
ratio of debt to equity should be no more than 3:1.
Before the establishment of a PMA Company an application has to be
made to the Investment Coordination Board for approval of the
company and its investment project. This approval is usually
received after two or three months in the form of a 'Capital
Investment Approval Letter', or 'Surat Pemberitahuan Pesetujuan
Presiden' (SPPP).
Major disadvantages of using a PMA Company are that the property
must be directly used for the approved project, and that a PMA
Company Major disadvantages of using a PMA Company are that the
property must be directly used for the approved project, and that a
PMA Company ? like any other corporate entity (Indonesian or
foreign) ? cannot hold a freehold title (Hak Milik). Whenever
freehold land is transferred to a corporate entity the title is
changed to 'HGB' which has to be renewed after 20 or 30 years
Legal Aspects of Foreign Investment in Indonesia
Foreign Investment Law No. 1/1967
Foreign Direct Investment (FDI), further known as PMA (Penanaman
Modal Asing), controlled by the Foreign Investment Law No. 1/1967,
as amended by the Law no.11/1970. Until today, this law is still
considered suitable with Indonesia's actual needs. As a legal basis,
the law is sufficiently accommodative to several deregulatory
policies and measures that have been taken by the Government.
In addition to the PMA Law No. 1/1967, the PMA Company as well as
other companies are still subject to industrial policies that have
been applied by the concerned Ministries. A PMA company is given a
30 year time period in order to operate as from its legal formation.
If within that stated time span it involves additional investments
(project expansion). Consequently, a PMA company can, in effect
continue to exist despite continuing ro expand and reinvest.
Share Ownership
A company is generally set up as a joint-venture between foreign and
Indonesian partners. This partnership can involve legal entities
(corporations) or individuals. The joint-venture legal entity will
take the form of a limited liability company which is subjected to
Indonesian Corporate Law, designated as PT (Perseroan Terbatas),
There is no minimum investment amount requirement (equity plus
loan). The amount for the parties wishing to determine, based on
economy of scale and other business considerations. The PMA
companies in infrastructure projects such as seaports, generation
and transmission as well as electricity distribution for public
usage; Telecommunications; shipping; airlines; potable water;
national railway lines, atomic energy reactors and mass media should
be comprise itself by intermediary of joint-ventures between foreign
and Indonesian partners provided that the Indonesian share is
maintained at a minimum of 5%. A PMA company can be set up as direct
investment, the company starts to be divested by selling part of
it's shares to Indonesian individual's and/or business entity's,
through direct and/or indirect placement through the domestic stock
markets.
Indonesia offers comparative natural and regulatory advantages to
the investor, with an attractive range and composition, for example:
- A vast, fertile country endowed with nature's bounties.
- A big population around 200 million people who generally live
peacefully and are dynamically adaptive towards progress,
constituting the market with a colossal potential as well as a
competitive workforce.
- A strategic location, at the crossroads of two great continents
and oceans that control important sea communication lanes.
- A nation in the process of change/reformation, return to a civil
and democratic society will manifest itself in a stable political
environment.
- A government committed to continuously provide a favorable
business and investment climate, especially for the private sector,
being constantly prudent in macro-economic management and
maintenance of high international financial credibility. |
