A citizen or legal entity that is not the owner of the property, but has been honestly open and permanently owned for seven years as his personal immovable property, acquires the right of ownership (term of ownership) of the property.

The mayor's Office of Almaty (hereinafter referred to as the plaintiff) filed a lawsuit against the defendants A. and S. For The Return of a land plot with an area of 0.0718 hectares located on Ostroumov Street, Almaty, for the forced demolition of unauthorized structures on the land plot.  The plaintiff's statement indicated that the defendants voluntarily misappropriated this land plot, built a house and surrounded it, the defendants were fined as an administrative penalty on March 5, 2012 for illegal actions, however, the defendants did not vacate the land plot and did not demolish the illegally erected structures. By the decision of the Turksib District Court of Almaty dated July 30, 2012, the claim was satisfied, and A. and S. were obliged to return a land plot with an area of 0.0718 hectares and forcibly demolish self-built structures.  From S. in favor of the state, a duty of 1,618 tenge was collected. The board of the appeal court for civil and administrative cases of the Almaty city court left the court's decision unchanged. The court of Cassation left the decision of the Appellate Judicial Board unchanged.

S. did not agree with the judicial acts and applied to the supervisory Judicial Board of the Supreme Court. In his application, he indicated that on the basis of the decision of the mayor of Turksib District of Almaty No. 147 dated July 17, 1997, the court found the decision of the mayor illegal without a full study, without a specific examination, violated the requirements of the law, he cleaned the land from garbage, built a house and used it open for 15 years, as well as that the Master Plan of Almaty was adopted after the transfer of the land to him. At the same time, the court did not fully study the arguments presented by the defendants, noted the incorrect application of the norms of material Law, asked to cancel the order of judicial acts and conduct supervisory proceedings.Representatives of the mayor's office of Almaty T. and D. challenged the appeal, asked to leave the judicial acts adopted in the case in force and dismiss the appeal of the defendants.  In accordance with Part 3 of Article 387 of the Code of Civil Procedure of the Republic of Kazakhstan (hereinafter referred to as the code of civil procedure), a significant violation of material norms or procedural law is the basis for reviewing decisions, rulings, decisions of the court that have entered into legal force in the order of supervision. In the case, such shortcomings are allowed. According to the case documents, by the decision of the mayor of Turksib District of Almaty dated July 17, 1997 No. 147, S. was granted a land plot located on Ostroumov Street in Almaty. However, the judicial authorities found this decision of the mayor unfounded. After all, according to the letter of the municipal state institution of the Central State Archive of Almaty dated October 15, 2012 No. 04-15/1438, the fund documents of the archive indicate that there is no decision of June 17, 1997 No. 147 on granting S. A vacant land plot on Ostroumov Street. There are decisions No. 147 dated July 10, 1997 and No. 129 dated June 17, 1997, signed by the Akim of Turksib District of Almaty, however, the content of these documents is completely different.

A citizen or legal entity that is not the owner of the property, but has been honestly open and permanently owned for seven years as his personal immovable property, acquires the right of ownership (term of ownership) of the property.

Based on the above archival letter, the judicial authorities concluded that the defendant S. illegally owns the disputed land.  However, the supervisory judicial board does not agree with this conclusion of the courts. In accordance with Parts 1, 2 of Article 32 of the Land Code of the Republic of Kazakhstan, the transfer of land use rights means the transfer of land use rights to a person directly by the state. Assignment of land use rights to citizens and legal entities is carried out on the basis of a decision of the local executive body of the region, city of Republican significance, capital, district, city of regional significance in accordance with the competence for assignment of rights to a land plot. The decision of the mayor of Turksib District of Almaty dated July 17, 1997 No. 147, issued in the name of S., was not canceled by any state body. The judicial instances did not appoint any examination on why the name of the defendant S. was not registered in the decision of the Turksib District of Almaty No. 147 of 1997, concluded that the content of the controversial decision of the mayor is completely different from the content of the decision of the Akim of the Turksib District No. 129 of June 17, 1997. However, it has not conducted a specific examination that confirms or refutes it, or questions them.Therefore, the conclusion of the court that S. owns the land plot on his own and illegally builds a house on it is unreasonable and contradicts the specified rule of law.  On the basis of Paragraph 4 of the normative resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 6, documents arising from the relevant rights of citizens and legal entities to a land plot (private property rights, land use rights, easements and other material rights to a land plot) are title documents to a land plot. The transfer of such documents to documents certifying ownership of land plots or land use rights in accordance with the Land Code is carried out only at the discretion of the right holders. If the decisions of local authorities do not comply with the law and this decision violates the rights of a citizen and the right of legality to land, that decision must be found illegal through the court. The land plot was granted to S. in 1997, that is, before the adoption of the new Land Code of 2003. However, the courts did not evaluate these arguments. In addition, the decision of the mayor was not filed with the court by the local authority as illegal or illegal. But the courts made their own conclusions and found the controversial decision of the mayor to be false. Such a conclusion of the courts contradicts Article 91 of the CPC. In addition, the courts concluded that the land plot of S. "is located within the boundaries of the red line and the Karasu water protection line." This judgment is based on the decision of the maslikhat of Almaty No. 284 dated November 20, 2006.  On December 19, 2002, the Government of the Republic of Kazakhstan adopted Resolution No. 1330 on the General Plan of the city of Almaty, that is, in 1997 there was no Land Code and the General Plan of the city of Almaty. Therefore, it is unreasonable for courts to refer to the Land Code of the Republic of Kazakhstan. According to Article 240 of the civil code, a citizen or legal entity that is not the owner of the property, but has been in good faith, Open and permanent possession of his personal immovable property for seven years, or other property for at least five years, acquires the right of ownership (term of ownership) of this property. The right of ownership of immovable and other property subject to state registration arises from the moment of such registration in the person who received this property in accordance with the term of ownership. The courts found the defendant's argument that he had been living on the land for 15 years unfounded, citing a technical passport as the reason, and concluded that the house on the disputed land was built in 2006. However, the courts did not correctly assess the arguments of S. This is because the technical passport of March 2, 2006 indicates the date of the technical survey of the house, but it is not established exactly on what date the house was built. The court did not conduct an examination to determine this period. S.'s neighbors or other disabled parties were not requested. Thus, the courts did not determine whether the term of ownership of S.'s property arose or not, but violated his rights enshrined in law. In this case, the Supervisory Board considers it necessary to cancel the decision of the disputed judicial acts and send the case to the appeal instance for reconsideration. During the review of the case, it is necessary to eliminate the above shortcomings, in particular, conduct an examination to determine the year in which the disputed house was built in the case, interrogate the neighbors of the defendant in the case as witnesses, appoint an examination to determine whether the decision of the Akim of Turksib District No. 147 of 1997 was registered in the name of S. 

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