About the compulsion to demolish an unauthorized building because an object has been erected on its site
A claim for recognition of the right to unauthorized construction is considered in a claim procedure, since the interested person applies for the protection of a violated or disputed right or legitimate interest by resolving a dispute over the right.
Paragraph 11 of the regulatory decree "On certain issues of dispute resolution related to the protection of home Ownership" provides comprehensive explanations on this issue.
Thus, claims for recognition of the right to unauthorized construction are filed and considered by the courts in all cases in the claim proceedings.
Example:
By the decision of the Taraz City Court of the Zhambyl region dated June 20, 2022, T.I.'s claim against T.P. for forcing the demolition of an unauthorized building was satisfied.
It follows from the case file that the subject of the dispute is an unfinished garage, which was erected by the defendant on his site, but part of the structure goes beyond the boundary of the parties' land plots and is located on the plaintiff's site.
The court granted the claim correctly. At the same time, the court incorrectly applied Article 244 of the Civil Code, since in this case there is no reason to consider the building erected by the defendant as an unauthorized construction.
Another example:
State Institution "Management of the Fuel and Energy Complex and Utilities of Astana", LLP "B", suing LLP "S", demanded to oblige the defendant at his own expense to demolish an unauthorized building - "Multi-apartment residential complex with built-in facilities and parking" (hereinafter referred to as the MCC), located at the address: city of Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana, Astana Astana, Yesil district, intersection of streets Ch.Aitmatova and Zh.Moldagalieva (hereinafter- UTEC, LLP "V", Partnership, MZHK). In the case, it was established that by the decree of the Akimat of Astana, UTEC was provided with two land plots (landfills) for conducting survey, survey and design work on the heating main, the 6th commissioning for 3 years, Based on the request of the contractor and UTEC about the impossibility of carrying out work on laying the pipeline on the site assigned to it, an appropriate check was carried out.
It has been established that since July 2022, without obtaining the appropriate permission and approval of the working draft, in the absence of the right to the land plot, the Partnership has been building a housing and communal services complex with built-in premises and parking of 4 blocks on the land plot at the specified address (work on pile driving has been completed and work on grillage filling has begun).
According to the results of the case review, UTEC's claim was satisfied, and the Partnership was charged with the obligation to demolish the illegal construction at its own expense.
The decision in this part, in accordance with part 1 of Article 244 of the CPC, is addressed to immediate execution. By the resolution of the Judicial Board for Civil Cases of the Astana City Court dated May 26, 2023, the court's decision remained unchanged. At the same time, the judicial collegium issued a private ruling against the Mayor of Astana on the violations committed.
In fulfillment of the assigned tasks, since 2018, the Department of the Fuel and Energy Complex and Utilities of Astana, based on the resolutions of the akim of the city dated October 9, 2018 and May 30, 2022, surveys, survey and design work "Main heating supply networks" have been carried out on a land plot of 25.1177 hectares (Yesil district, highway district Korgalzhyn).
However, the construction period, therefore, the provision of heating (gas) to consumers has been disrupted due to the unauthorized and illegal construction of S LLP.
The Judicial Board drew attention to the fact that the controlling state body failed to identify and stop the illegal actions of an unscrupulous developer in a timely manner.
Thus, the above dispute is an example of an unauthorized building erected on land not formed into land plots owned by the state.
Justification:
By virtue of articles 31 and 31-1 of the Law on Architecture, the authorized body for Architecture, Urban Planning and Construction carries out architectural and construction control and supervision by visiting construction sites, as well as monitoring the activities of local executive bodies for architecture, urban planning, construction and state architectural and construction control.
The state architectural and construction control and supervision is carried out for the availability of the relevant right to the land plot, approved design (design estimates) documentation, a positive project expert opinion, as well as notification of the authorities carrying out state architectural and construction control and supervision, on the commencement of construction and installation work.
When violations of state standards and (or) deviations from approved projects (design decisions) are identified, the state architectural and construction control and supervision bodies make decisions (issue prescriptions).
Regulations, instructions and other decisions of state bodies of architectural and construction control and supervision, as well as state bodies issued in accordance with the procedure established by law, are mandatory for all subjects of architectural, urban planning and construction activities carried out on the territory of the Republic of Kazakhstan.
The facts of bringing defendants to administrative responsibility for failure to comply with the terms of the injunction in accordance with Articles 463, 321, 319 of the Administrative Code relate to the evidence base when filing a claim in court.
The circle of persons involved in the case.
Claims for recognition of ownership of an unauthorized building are considered by the courts in the order of claim proceedings and submitted to the local executive body. The defendants in such cases should be the akims of the relevant administrative-territorial unit, who head the local executive body. Depending on the category of the dispute, such claims may be filed against the owner of the land plot or against the developer (the person who erected the unauthorized building).
It should be borne in mind that if the unauthorized construction was created by contractors, the defendant will be the customer as the person on whose instructions the unauthorized construction was carried out.
In each specific case, the composition of third parties whose participation is necessary for the proper resolution of the case is determined by the court by the content of the subject matter and grounds of the plaintiff's claims, the defendant's objections and the laws to be applied.
It should be borne in mind that the decision taken in the case may affect the scope of the rights and obligations of these persons.
The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.
Paragraph 11 of the regulatory resolution "On certain issues of dispute resolution related to the protection of Home Ownership" clarifies that a claim for recognition of ownership of an unauthorized dwelling is brought against a local executive body.
The plaintiffs mostly correctly indicated the defendant, and at the same time, there are lawsuits when the plaintiff's claims for recognition of the right to unauthorized construction are made against an improper defendant.
Article 50 of the CPC provides that in the event of a claim against an improper defendant, the court, in order to prepare the case for trial, explains to the plaintiff his right to file an application for replacing the improper defendant with a proper one.
The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.
Jurisdiction
In accordance with Part 1 of Article 31 of the CPC, claims for rights to land plots, buildings, premises, structures, other objects firmly connected with land (real estate) and others are filed at the location of these objects.
That is, disputes related to the recognition of ownership of an unauthorized building are considered at the location of the disputed property. If one of the parties to the case is a citizen, then such claims are considered by the district courts.
In cases where the parties to the case are individuals engaged in individual business activities without forming a legal entity and legal entities, the claim is subject to the jurisdiction of specialized economic courts in accordance with part 1 of Article 27 of the CPC.
When determining the jurisdiction of cases involving the application of the provisions of Article 244 of the Civil Code, the courts must take into account the subject matter of the parties to the dispute and the nature of the legal relationship in their entirety.
In order to become an object of relations regulated by Article 244 of the Civil Code, a building made by a person must be unauthorized.
When accepting a claim for recognition of ownership of an unauthorized non-residential building, as well as a claim by an authorized body for the demolition of such a building, questions often arise about jurisdiction when the plaintiffs in the first case or the defendants in the second case are individuals who are not registered as an individual entrepreneur, but the disputed property is being used or will be used. for business purposes.
Thus, in the absence of state registration of an individual as an individual entrepreneur, a dispute involving him is subject to the jurisdiction of a court of general jurisdiction.
The fact that the subject of the claim is an industrial premises that can be used for entrepreneurial activities does not affect the jurisdiction of the dispute, since the law does not restrict the right of individuals to own any property, including non-residential/industrial premises.
Thus, under the above circumstances, there are no grounds for refusing to accept a claim for recognition of ownership rights or for the demolition of such an unauthorized building by a court of general jurisdiction.
State duty
In accordance with Article 607 of the Tax Code, the state duty is a mandatory payment levied for the commission of legally significant actions and (or) the issuance of documents by authorized state bodies or officials.
By virtue of Article 149 of the CPC, a document confirming payment of the state fee is attached to the statement of claim.
Subparagraph 11) of Part 1 of Article 104 of the CPC stipulates that in claims for ownership of immovable property, the price of the claim is determined by the market value of such objects at their locations on the day of filing the claim.
Civil law disputes over the ownership of unauthorized buildings relate to property-related claims, respectively, subject to assessment. The disputed object is tangible and has a monetary value, therefore, its price is determined by market value.
According to subparagraph 1) of paragraph 1 of Article 610 of the Tax Code, unless otherwise provided by this paragraph, a state fee is charged on property claims: 1 percent from individuals and 3 percent from legal entities of the amount of the claim.
The state fee for filing a claim for recognition of ownership of an unauthorized building is payable based on the value of the property, with documents on its market value attached to the application (assessment report, information certificates on the market value of immovable property).
The rules of Part 1 of Article 109 of the CPC on the distribution of court costs with their award to the party in whose favor the decision was made do not apply to the category of cases on claims filed against a local executive body for recognition of ownership of an unauthorized building, and courts should not recover from local executive bodies in favor of plaintiffs the costs of paying state fees.
It should be assumed that the plaintiff has chosen judicial protection of his rights, while the defendant in such cases does not violate the plaintiff's material rights.
Earlier, the Supreme Court provided clarifications on this issue, including in the regulatory decree "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases."
These clarifications are reflected in the generalizations of the regions, which may indicate their widespread use in judicial practice and the absence of difficulties for the courts in this matter.
At the same time, there are cases when courts have accepted lawsuits and considered cases without assessing the market value of a real estate object or with only the title page of the real estate valuation report, while its research part contains approaches and methods, description, technical and design characteristics and other information about the research object in the materials. the case was missing.
The absence of a document confirming the market value of the constructed facility prevents the determination of the amount of the state fee to be paid when filing a claim.
Regulatory framework
The main regulatory legal acts regulating the recognition of the right to unauthorized construction and to be applied in the consideration of cases in this category are:
- The Constitution of the Republic of Kazakhstan; - The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code); - The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC);
- The Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code);
- The Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter – the Law on Architecture);
- The Law of the Republic of Kazakhstan "On Local Government in the Republic of Kazakhstan" (hereinafter – the Law on Local Government);
- The Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as the Administrative Code);
- The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (the Tax Code) (hereinafter referred to as the Tax Code);
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on the right of ownership of housing" dated July 9, 1999 No. 10 (hereinafter referred to as the regulatory resolution "On certain issues of the application of legislation on the right of ownership of housing");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of dispute Resolution related to the protection of Ownership of housing" dated July 16, 2007 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of Dispute Resolution related to the protection of Ownership of housing");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of land legislation by Courts" dated July 16, 2007 No. 6 (hereinafter referred to as the regulatory resolution "On certain issues of the application of land legislation by Courts");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by Courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9 (hereinafter referred to as the regulatory resolution "On the application by Courts of the Republic of Kazakhstan of legislation on court Costs in civil cases");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of Inheritance legislation by Courts" dated June 29, 2009 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of the application of Inheritance legislation by Courts");
- Rules for the organization of construction and the passage of licensing procedures in the field of construction, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 No. 750 (hereinafter referred to as the Rules for the Organization of construction)
- SNiP RK, regulating relations in the field of architecture, urban planning and construction. When considering disputes, the regulatory legal acts in force at the time of the emergence of the relevant legal relationship are subject to application.
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