Many people living in urban area could not afford to buy or build landed houses due to the limited availability of land. Therefore, they tend to buy more affordable units in apartment buildings. Developers have understood such tendency as an opportunity to build apartment buildings in big cities across Indonesia.
The construction of flats is regulated through Law No. 20 of 2011 on Apartment Building and Government Regulation No. 13 of 2021 on the Implementation of Apartment Building, which revoked Government Regulation No. 4 of 1988 on Apartment Building.
Apartment building is referred to as a multi-storey building in which there are horizontal and vertical parts and units which can be functionally owned and used separately. According to Article 1 paragraph 2 of Government Regulation No. 13 of 2021 on Apartment Building, each apartment has a number of elements in the form of Joint Land, Shared Parts, and Shared Objects.
Joint land refers to owned land or state land on which apartment buildings are built. Shared parts and shared objects are parts of the apartment buildings that can be jointly used by the owners or tenants of the apartment units.
Some examples of shared parts are elevators and escalators that are located inside the apartment building. Some examples of shared objects are swimming pools, gardens dan trees that are located outside the apartment building but are still in the same area.
Article 100 of Government Regulation No. 13 of 2021 on Apartment Building states that joint land, shared parts and shared objects are objects whose management must be handed over to the Association of Apartment Unit Owners and Tenants (PPPSRS) after a specific period.
This transfer of management resulted in PPPSRS, which represents the owners and residents of the flats, having the authority over the use of joint land, shared parts and shared objects. If in its management there is an impact on profit or loss, then this becomes the burden of the owners and tenants who are members of the PPPSRS. This association must be incorporated and recognized by the State.
However, there is a confusion regarding whether there are differences or similarities between shared parts and shared objects together with the terms infrastructure, facilities and public utilities as referred to in Article 32 Paragraph 2 of Government Regulation No. 13 of 2021 on Apartment Building which states:
“Developers are required to complete the apartment building with public infrastructure, facilities and utilities”
Furthermore, Article 33 Paragraph 2 of Government Regulation No. 13 of 2021 on Apartment Building states that developers must provide a road network, sewerage, drainage, commercial facilities, health, worship, education, green open spaces, parking, electricity networks, water , telephone, fire, and general services.
Based on the descriptions of the articles above, it is appropriate that public infrastructure, facilities and utilities which are a unitary function of the embodiment of shared parts and shared objects should be handed over by the developers to PPPSRS.
However, in reality, matters related to infrastructure, facilities and public utilities often cause potential problems between developers and PPPSRS, considering that most of the existing apartment buildings were built in the past that were regulated under Government Regulation No 4 of 1988 on Apartment Building.
In fact, Government Regulation No 4 of 1988 on Apartment Building is not much different from tGovernment Regulation No. 13 of 2021 on Apartment Building. However, developers usually register the infrastructure, facilities and public utilities as Apartment Units owned by them. This is the reason why the management of joint land, shared parts and shared objects cannot be transferred to PPPSRS.
This will result in losses for the owners and tenants of the apartment building if the infrastructure, facilities and public utilities are closed or converted or confiscated by the state in the future. As a result, apartment buildings will no longer have public facilities such as parking lots.
In order to avoid this particular issue and to guarantee legal certainty, the central government or regional administration should issue a regulation to regulates these matters. In addition, PPPSRS must be more observant of developers , especially in relation to the management of shared parts and shared objects.
Author / Contributor:
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Rekyono Dihatmojo, S.H.
Senior Associate Contact: Mail : rekyono@siplawfirm.id Phone : +62-21 799 7973 / +62-21 799 7975 |