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Married with Indonesian , Hak Milik & Hak Pakai

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  • Married with Indonesian , Hak Milik & Hak Pakai

    Hello everyone, this is my first post here.

    First of all, I'm very happy to have found this forum. It has helped me a lot in the past regarding visas and immigration.

    I'm planning to "buy" property in Indonesia, I'm married with an Indonesian citizen.
    I came to the conclusion that putting the Hak Milik under my wife's name would be the best solution.

    Meanwhile, I have come to the agreement with my wife that she should lease it to me under Hak Pakai once she gets the certificate.
    No problem so far, as we both agree that this is the best solution for me to get property rights in Indonesia.

    My question: is it legal to use my wife as the Hak Milik nominee who would then lease it to me under Hak Pakai?

    This way when my Hak Pakai term is finished the land will go back to my wife who will by then be in her 70s, thus the land would go to my Indonesian kids later on.

    I've asked a few notaries, one said he wasn't sure and the other one said no problem.

    Bamizoni

  • #2
    Bamizoni , I am not a specialist in this matter (I did a Hak Milik process once but never did a Hak Pakai) , but from what I know from reading , your idea seems ok if you have a prenup/separated wealth (or have separated wealth in Court - although the Constitutional Court decided a pos-nup should be ok too , as I heard , this is not automatically applicable) .

    I guess you could also just make a normal long rent contract (could be notarized ?) that , I imagine , would be cheaper/simpler than getting a Hak Pakai (which at its end of validity would , maybe , require you to do another notary process - this Hak Pakai process is not exactly like the leasing contract we are used to - I view Hak Pakai as closer to a full ownership than to a leasing as it seems that its holder can sell the Hak Pakai property to anybody) .

    Or also , a money loan contract (could be notarized ?) .

    Note : If you are paying for the house , I really think that getting some kind of warranty is a good idea as divorces have been more and more common nowadays . I didn't do anything and ended losing "my" house to my ex-wife .


    http://www.livinginindonesiaforum.or...o-prenup/page9 (Dafluff's explanation about HGB > Hak Milik)

    http://www.livinginindonesiaforum.or...-prenup/page10 (Hak Milik > Hak Pakai > Hak Milik)

    PERATURAN PEMERINTAH REPUBLIK INDONESIA NOMOR 40 TAHUN 1996
    TENTANG HAK GUNA USAHA, HAK GUNA BANGUNAN DAN HAK PAKAI ATAS TANAH

    http://www.hukumonline.com/klinik/de...jadi-hak-milik , March 2014 (Requirements for upgrading Hak Pakai into Hak Milik)

    If necessary Google Translate
    Last edited by marcus; 25-05-18, 11:08.

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    • #3
      Thanks for the response Marcus!

      Hak Sewa is out of the question for me. I want Hak Pakai status on the property only, or else the deal won't go thru. Mainly because the Hak Sewa status is not registered at the Indonesian land office.

      I been married abroad and we are currently in the process of registering our marriage in Indonesia. We didn't write up a prenup agreement yet, because we didn't get married in Indonesia and I don't own anything back in my home country.

      I read online that since recently postnup agreements are valid now in Indonesia (with a valid date after the marriage has been registered). This is what I will be doing, in this case if we do end up divorcing one day, I assume I'll be able to keep my Hak Pakai property on which she will get back the Hak Milik after 50 or 70 years, correct?

      I'll be back in 2 week in Indonesia. The plan is to buy land somewhere near the end of this year, and then later on build an apartment building on it, it's indeed real property but I see it more as a business.

      I'd like to keep this topic as civilized as possible, we all know any marriage can possibly go soar indeed, but not all. The reason why I want my wife to give me Hak Pakai after she has received the Hak Milik certificate on the land is for me to be able to keep the land in case things go indeed soar one day.

      At the end she'll still get her Hak Milik status back when the Hak Pakai term finishes, so the land would go to my kids.

      Any thoughts and advice would be welcome.

      Bamizoni

      Comment


      • #4
        Originally posted by Bamizoni View Post
        (1) ... I read online that since recently postnup agreements are valid now in Indonesia ...

        (2) if we do end up divorcing one day, I assume I'll be able to keep my Hak Pakai property on

        (3) which she will get back the Hak Milik after 50 or 70 years, correct? ...

        (1) You may find notaries who agreed to make one , but it seems it will not be legal . I heard from a lawyer and a law school student that the decision of the Constitutional Court is not applicable yet , it still need the Law to be revised .

        (2) Yes I think . But be sure that the building that you want to build is according to what the Law allows (it seems you are allowed to have one residence , not a business building) .

        (3) I think that first is for 30 years (it was revised recently from 25 years) than it can be extended for more 20 ? years , ... I have no idea if extension(s) are always possible , and what happens at the end .


        ---------------------------------------------


        Below is a partial copy of post no.46 at http://www.livinginindonesiaforum.or...nominee./page5
        [...A foreigner is only allowed to own one Hak Pakai title and it should be for their primary residence in Indonesia. Obviously this raises a question as to renting the villa under a Hak Pakai Certificate and what quantifies someone “residing” in Indonesia, new legislation has served to clarify this by saying under Article 1 (1) of RMA 7/96 states that “a foreigner whose presence in Indonesia gives opportunities for national development” may own a house under Hak Pakai; and Article 1 (2) closes the circle by saying that such a foreigner is one who; “has and maintains an economic interest in Indonesia by implementing an investment in the ownership of that house. In other words, any foreigner who buys a house in Indonesia is contributing to national development and therefore is entitled to hold Hak Pakai."]

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