The material judicial review hearing of Law No. 20 of 2011 on Condominium to hear the Government, Tuesday (8/9/2022). Photo by Humas MK/Ifa.
Tuesday, August 9, 2022 | 15:27 WIB
JAKARTA—Non-residential functions can also be performed in a different building as long as the building with residential functions and that with non-residential functions are on the same land. This underlies the Government Regulation (PP) No. 13 of 2021 on the Implementation of Condominium to stipulate that the Condominium Owner and Tenant Association (PPPSRS) management must reside in the condominium.
This statement was made by Iwan Suprijanto, Director for Strategic Infrastructure of the Public Works and Public Housing (PUPR) Ministry’s Directorate-General of Cipta Karya, at the material judicial review hearing of Law No. 20 of 2011 on Condominium in the Constitutional Court (MK) on Tuesday, August 9, 2022 to hear the Government.
“Residential and mixed functions or a mixture between residential and non-residential functions, in the Government’s opinion, can be [performed by] the same building, where the ground floor is functioned as a non-residential facility. So, in this regard, the PPPSRS management resides in a building with a residential function as mandated in Article 94 paragraph (2) of the Government Regulation No. 13 of 2021 on the Implementation of Condominium, not in a building with non-residential functions,” he explained.
He said, in the context of flats with residential and mixed functions where the two functions are contained, the purpose of providing residential flats with residential functions will be more considering that in every flat with a non-residential function there will be a flat with a residential function.
“So that based on the Condominium Law, some PPPSRS management and supervisors will reside in the condominium with mixed functions as regulated in Article 94 paragraph (1), paragraph (2), paragraph (3) of the Government Regulation No. 13 of 2021 on the Implementation of Condominium,” he said virtually.
Iwan further explained that following Law No. 16 of 1985 on Condominium or the old Condominium Law, the condominium’s management is only carried out by the residents since they know the lives and livelihoods of the residents, the conditions of the residence, and the neighbor relations within the building and with surrounding buildings.
The old Condominium Law, he added, was intended to provide a legal basis for the construction of condominiums and the right of ownership of condominium units in Tanah Abang and Kebon Kacang, which used to be one of the slum settlements in Jakarta. Those units were intended for purchase where the right of title in the form of certificates of ownership (SHM) were issued. However, the condominium’s capacity exceeded the number of slum dwellers, so people outside of the areas could purchase the leftover units. Some of them reside elsewhere and instead rent the units out to those who cannot afford to buy the units. “The condominium can be managed by residents, not necessarily by the owner, although there is possibility that the owner is also a resident,” Iwan said.
The Government emphasized that the Petitioners do not lose their right to obtain private property rights as regulated in Article 28H paragraph (4) of the 1945 Constitution. In addition, their rights are covered in the Condominium Law as long as the buildings they own are mix-use ones (mainly as a residence with additional function as a place of business in its agreement, following Article 24 points 2 and 3 of the Job Creation Law, which amends Articles 5 and 6 of the Building Law).
Submit to Condominium Law
Iwan asserted that if the Petitioners would like to establish a PPPSRS in their condotel, they must submit to the Condominium Law and its implementing regulations. “Based on the Condominium Law, in order to form a PPPSRS, the management must be formed first with a condition that they or the condominium unit reside in the condominium units. In this case, there most be owners who reside in the Petitioners’ condotel to be part of the management,” he said.
Thus, he added, the Petitioners’ condominium SHM and binding sale and purchase agreement can still prove their ownership of the condotel units as long as they comply with the provisions on condominium. Therefore, the arguments they made were groundless. In fact, they applicants may exercise all rights arising from the ownership of the condominium units as long as they comply with all statutory regulations. However, when they enter into an agreement with another party for the management of the condominium into condotel units that is not inhabited, the building functions shifted from residence to business.
“So, it is clear that the PPPSRS is not needed for a building that functions as a business place, because the owner is not qualified,” he added.
The case No. 62/PUU-XX/2022 was filed by owners of a condotel (condominium-hotel) Rini Wulandari, Hesti Br Ginting, Ir. Budiman Widyatmoko, and Kristyawan Dwibhakti (Petitioners I-IV). They challenge Article 50 of the Condominium Law, which reads, “The use of multi-story buildings shall be conducted in accordance with the function: a. residence; or b. mix-use.”
At the preliminary hearing, the Petitioners argued that a condotel that is not functioned for residence or mix-use kept them from forming a Condominium Owner and Tenant Association (PPPSRS) to deal with the interests of the owners and residents in terms of management, ownership, and occupancy. This led to the property (the multi-story unit complete with communal parts, objects, and land) not being owned by the Petitioners but the developer.
It also resulted in their condominiums not being able to be issued a certificate of condominium unit ownership for. Then, in their petition, they that the Court declare Article 50 of the Condominium Law conditionally unconstitutional and not legally binding as long as it is not interpreted as including “not a residence.”
Writer : Utami Argawati
Editor : Lulu Anjarsari P.
PR : Andhini S. F.
Translator : Yuniar Widiastuti (NL)
Translation uploaded on 8/10/2022 09:48 WIB
Disclaimer: The original version of the news is in Indonesian. In case of any differences between the English and the Indonesian versions, the Indonesian version will prevail.