Conflict of Norms and Application of Horizontal Compartmentalization Principles

Oct 13, 2025 by windailys.com 136 views

Legal Aspects of Ownership of Flats by Foreign Citizens with Building Use Rights after the enactment of Law Number 11 of 2020 concerning Work Cipta

Introduction

The enactment of Law Number 11 of 2020 concerning Work Cipta (Law Cipta Work) has brought about significant changes in the property investment landscape in Indonesia, particularly with regards to the ownership of flats (Rusun) by foreign citizens (WNA). The Cipta Work Law has opened up opportunities for foreigners to acquire flats with building rights (HGB), but its implementation has led to controversy and raised questions about its legality. In this article, we will delve into the legal aspects of ownership of flats by foreign citizens with HGB after the enactment of the Cipta Work Law.

Controversy for New Rules:

The Work Copyright Law, as stated in Article 163, provides that foreigners can acquire a flat with HGB based on a sale and purchase agreement or inheritance. However, this provision clashes with Law Number 20 of 2011 concerning Flats (UUPA), which states that HGB can only be owned by Indonesian citizens (WNI). This discrepancy has led to a norm conflict, which is a situation where two or more laws or regulations conflict with each other.

Understanding the Conflict of Norms

The conflict between the Work Cipta Law and the LoGA (Law Number 20 of 2011 concerning Flats) raises questions about the legality of foreigners owning flats with HGB. The LoGA is a more specific rule than the Work Cipta Law, and therefore, its provisions take precedence. This means that although the Cipta Work Law opens up opportunities for foreigners to acquire flats with HGB, its implementation must still refer to the LoGA rules. The LoGA still prohibits HGB ownership of land for foreigners.

Conflict of Norms and Application of Horizontal Compartmentalization Principles

To resolve the norm conflict, the principle of horizontal compartmentalization is applied. This principle states that in the event of a conflict between two laws and regulations, the more specific law or regulation applies. In this case, the LoGA is a more specific rule than the Work Cipta Law, and therefore, its provisions take precedence.

Implications of the Norm Conflict

The norm conflict between the Work Cipta Law and the LoGA has several implications:

*** Legal Uncertainty: ** This situation causes legal uncertainty for foreigners who want to invest in Indonesian property. The ambiguity surrounding the ownership of flats with HGB by foreigners creates a risk for investors who may not be aware of the legal implications.

Potential of Disputes: ** The potential for legal disputes between foreigners and the owner of the flat, as well as other parties related to the ownership of HGB over the land, is greater.

*** The Need for Clarification: ** The government needs to immediately clarify and harmonize the rules related to the ownership of flats by foreigners with HGB in order to create legal certainty and attract foreign investors.

Importance of Long-term Solutions

To avoid norm conflicts in the future, long-term solutions are needed. This solution can be in the form of a revision of the LoGA or the formation of a derivative regulation from the Work Copyright Law that is more specific to regulate the ownership of flats by WNA with HGB.

Revision of the LoGA

One possible solution is to revise the LoGA to allow foreigners to own flats with HGB. This would require a comprehensive review of the law to ensure that it is consistent with the Cipta Work Law and other relevant laws and regulations.

Formation of a Derivative Regulation

Another possible solution is to form a derivative regulation from the Work Copyright Law that is more specific to regulate the ownership of flats by WNA with HGB. This would require a detailed analysis of the Cipta Work Law and the LoGA to identify the specific provisions that need to be harmonized.

Conclusion

The ownership of flats by foreigners with HGB after the enactment of the Cipta Work Law has led to a legal dilemma. The norm conflict between the Work Cipta Law and the LoGA presents challenges and uncertainty. To overcome this, a more comprehensive explanation and alignment of rules is needed in order to create a conducive investment climate and clear legality for foreigners who want to invest in Indonesian property.

Recommendations

Based on the analysis above, the following recommendations are made:

The government should immediately clarify and harmonize the rules related to the ownership of flats by foreigners with HGB.
A revision of the LoGA or the formation of a derivative regulation from the Work Copyright Law that is more specific to regulate the ownership of flats by WNA with HGB should be considered.
A comprehensive review of the Cipta Work Law and the LoGA should be conducted to identify the specific provisions that need to be harmonized.
A detailed analysis of the implications of the norm conflict should be conducted to identify the potential risks and challenges associated with the ownership of flats by foreigners with HGB.

By implementing these recommendations, the government can create a more conducive investment climate and clear legality for foreigners who want to invest in Indonesian property.
Frequently Asked Questions (FAQs) about the Legal Aspects of Ownership of Flats by Foreign Citizens with Building Use Rights after the enactment of Law Number 11 of 2020 concerning Work Cipta

Q: What is the Law Number 11 of 2020 concerning Work Cipta?

A: The Law Number 11 of 2020 concerning Work Cipta (Law Cipta Work) is a law that has brought about significant changes in the property investment landscape in Indonesia, particularly with regards to the ownership of flats (Rusun) by foreign citizens (WNA).

Q: What are the provisions of the Work Cipta Law regarding the ownership of flats by foreigners?

A: The Work Cipta Law provides that foreigners can acquire a flat with building rights (HGB) based on a sale and purchase agreement or inheritance.

Q: What is the conflict between the Work Cipta Law and the LoGA?

A: The conflict between the Work Cipta Law and the LoGA (Law Number 20 of 2011 concerning Flats) is a norm conflict, where two or more laws or regulations conflict with each other. The LoGA is a more specific rule than the Work Cipta Law, and therefore, its provisions take precedence.

Q: What are the implications of the norm conflict between the Work Cipta Law and the LoGA?

A: The norm conflict between the Work Cipta Law and the LoGA has several implications, including:

Legal uncertainty for foreigners who want to invest in Indonesian property
Potential of disputes between foreigners and the owner of the flat, as well as other parties related to the ownership of HGB over the land
The need for clarification and harmonization of the rules related to the ownership of flats by foreigners with HGB

Q: What are the possible solutions to the norm conflict between the Work Cipta Law and the LoGA?

A: There are two possible solutions to the norm conflict between the Work Cipta Law and the LoGA:

Revision of the LoGA to allow foreigners to own flats with HGB
Formation of a derivative regulation from the Work Copyright Law that is more specific to regulate the ownership of flats by WNA with HGB

Q: What is the importance of long-term solutions to the norm conflict between the Work Cipta Law and the LoGA?

A: Long-term solutions are necessary to avoid norm conflicts in the future. This can be achieved through a revision of the LoGA or the formation of a derivative regulation from the Work Copyright Law that is more specific to regulate the ownership of flats by WNA with HGB.

Q: What are the recommendations for resolving the norm conflict between the Work Cipta Law and the LoGA?

A: The following recommendations are made:

The government should immediately clarify and harmonize the rules related to the ownership of flats by foreigners with HGB
A revision of the LoGA or the formation of a derivative regulation from the Work Copyright Law that is more specific to regulate the ownership of flats by WNA with HGB should be considered
A comprehensive review of the Cipta Work Law and the LoGA should be conducted to identify the specific provisions that need to be harmonized
A detailed analysis of the implications of the norm conflict should be conducted to identify the potential risks and challenges associated with the ownership of flats by foreigners with HGB

Q: What are the benefits of resolving the norm conflict between the Work Cipta Law and the LoGA?

A: Resolving the norm conflict between the Work Cipta Law and the LoGA can bring several benefits, including:

Creation of a more conducive investment climate for foreigners who want to invest in Indonesian property
Clear legality for foreigners who want to invest in Indonesian property
Reduced potential for disputes and legal uncertainty
Increased confidence in the Indonesian property market for foreign investors

Q: What are the next steps for resolving the norm conflict between the Work Cipta Law and the LoGA?

A: The next steps for resolving the norm conflict between the Work Cipta Law and the LoGA include:

Conducting a comprehensive review of the Cipta Work Law and the LoGA to identify the specific provisions that need to be harmonized
Analyzing the implications of the norm conflict to identify the potential risks and challenges associated with the ownership of flats by foreigners with HGB
Developing a plan for resolving the norm conflict, including the revision of the LoGA or the formation of a derivative regulation from the Work Copyright Law
Implementing the plan for resolving the norm conflict and monitoring its progress.