GOVERNMENT DETERMINES GOVERNMENT REGULATIONS FOR ALLOWING FOREIGN PEOPLE OWNING HOUSES IN INDONESIA

President Joko Widodo on December 22, 2015, has signed Government Regulation Number 103 of 2015 concerning Ownership of Residential Houses or Occupancy by Foreigners Based in Indonesia (hereinafter abbreviated to Government Regulation Number 103 of 2015) with consideration to further provide legal certainty ownership of residential houses or dwellings by foreigners domiciled in Indonesia. (data can be accessed at: http://setkab.go.id/terbitkan-pp-pemerintah-resmi-izinkan-orang-asing-miliki-rumah-tempat tinggal-di-indonesia/). In the Government Regulation it is mentioned, what is meant by Foreigners domiciled in Indonesia, hereinafter referred to as Foreigners, are persons who are not Indonesian citizens whose existence provides benefits, conducts business, works, or invests in Indonesia (Article 1 Number 1 Government Regulation Number 103 of 2015). "Foreigners can own a house for a residence or residence with the Right to Use," reads Article 2 paragraph (1) of this Government Regulation. The homes or dwellings that can be owned by foreigners as referred to are:

a. Above ground house:

1. Right of Use; or

2. The Right to Use above the Right to Ownership which is controlled based on the agreement to give the Right to Use over the Right to Ownership with the Act of the Land Deed Maker.

b. Sarusun (unit of flats) built on a plot of land for Use Rights.

According to Article 6 Government Regulation Number 103 of 2015, Single Houses given on land that can be owned by Foreigners are given for a period of 30 (thirty) years, and can be extended for a period of 20 (twenty) years. In the event that the period of extension referred to ends, the Right to Use can be renewed for a period of 30 (thirty) years.

Whereas Single Houses on Land of Use Rights on Ownership Rights which are controlled based on the agreement as referred to are granted Use Rights for an agreed period of not more than 30 (thirty) years, Use Rights can be extended for a maximum period of 20 (twenty) ) years in accordance with the agreement with the holder of land rights, and can be renewed for a maximum period of 30 (thirty) years according to the agreement with the holders of land rights (Article 7 Government Regulation Number 103 of 2015). "The extension and renewal as intended are carried out as long as foreigners still have a residence permit in Indonesia," (Article 8 Government Regulation Number 103 of 2015).

Legal issues caused by Government Regulation Number 103 of 2015, among others, is related to the period of granting usage rights that are not harmonious with the provisions of Article 49 Paragraph (1) Government Regulation Number 40 of 1996 concerning Land Use Rights, Building Use Rights and Land Use Rights (Government Regulation Number 40 of 1996) which stipulates that "the Right to Use the Right to Ownership is granted for a maximum period of twenty-five years and cannot be extended" however, with an agreement between the Right Holder to the Right Holder, the Right to Use the Right to Ownership can be renewed with the Act of Deed Forming Officer Land (PPAT in Indonesia) and these rights must be registered, while Government Regulation Number 103 of 2015 stipulates that use rights can be granted for 30 years (Article 7 Government Regulation Number 103 of 2015), thus there is a 5-year difference between Government Regulation Number 103 Th. 2015 with Government Regulation Number 40 of 1996.

In addition to these juridical issues, there are also social problems where the period of granting usage rights is too long, so that people who initially have ownership rights over land which are then demoted to ownership rights have to wait decades to get their ownership rights again, on the other hand the elimination of ownership rights is determined by Government Regulation Number 40 of 1996 Article 55 Paragraph (1) only in certain circumstances such as:

a. The expiration of the Right to Use period.

b. Canceled by the competent official, management right holder or right owner before the time period expires because:

1) non-fulfillment of rights holder obligations and / or violations of Articles 50, 51 and 52;

2) not fulfilling the terms and obligations contained in the agreement to grant the Right to Use, or

3) court decisions that have permanent legal force.

Thus, the protection of the Right to Use can be said to better protect the Right to Use (foreigners) than the person who has ownership rights over the land (Indonesian people), because when the heirs or people who originally pledged their Property Rights to be given to foreigners with the Right If you want to cancel the agreement on the grounds that it will be used for other purposes, or the heirs who want to cancel the agreement on the grounds of not agreeing to the agreement made by the testator, then it takes a long way in court to cancel the Right to Use with the consequence of spending a lot of money and time too meanwhile, if awaiting the abolition of the Right of Use also requires decades to be able to obtain and re-use the Property Rights.

Related to the term of the Right of Use by these foreigners, based on the results of interviews conducted by the Criminal Law Department of the Faculty of Law of Udayana University on local communities in Nusa Penida, Klungkung Regency, it is known that local communities are tempted by the nominal value offered by foreign investors to rent or agreements the granting of Ownership Rights into Usage Rights that reach billions of Rupiah within 30 years, on the other hand without taking into account legal issues in the future that will most likely be experienced by children or even their grandchildren. Local people will only be "viewers at home" while the "house" is managed by foreign investors for the rest of their lives, without further benefits.

Philosophical issues related to the term of the Right to Use by foreigners can be seen in the concept of ownership rights stipulated in Article 20 of Law Number 5 of 1960 concerning Basic Regulations on Agrarian Principles (UUPA in Indonesia) is a hereditary, strongest and most fully fulfilled right that can be people own over land (keeping in mind social rights on land). Thus there are no rights that are stronger than ownership rights, in other words the rights to land including the right to use can be set aside by ownership rights because in principle the Right to Use is only the right to use / manage land, cannot sell to other parties. But based on Article 55 Government Regulation 40 of 1996, people who have ownership rights to the land promised to be given the right to use must fight hard and long in court, even though the principle is clear that ownership rights can certainly rule out the use rights, but not so when the ownership rights are demoted to use rights.

Another philosophical problem lies in the prohibition of foreigners from owning land in Indonesia (Article 9 of the UUPA which is analyzed in argumentum a contrario). So that the validity of the Right to Use period granted to foreigners in Government Regulation Number 103 of 2015 (30 years and can be extended for 20 years with provisions that can be renewed for a period of 30 years and can be inherited) can eliminate the Indonesian people's ownership rights in a delicate manner, in the sense that the concept of ownership is not violated but it takes up to 50 years (agreed upon later extended in agreement) to then be able to process the transfer of the Usage Right to be submitted for re-application of the Property Right, assuming when the agreement was agreed to be 21 years old, then it is possible for at least two generations to arrive at the process of returning the Right of Use back into the Property Rights. As stated in the opening of the 1945 Constitution of the Republic of Indonesia (1945), the State is obliged to protect the entire Indonesian nation (rights owned) so that legal protection for foreigners who have a house or residence in Indonesia needs to be reviewed in depth.