A lawsuit against the Housing Administration and the Housing Inspectorate for the reinstatement of those in need of housing from the state housing stock
No.6001-23-00-6ap/1340 dated 17.10.2023
Plaintiff: A.A.
Defendant: State Institution "Housing and Housing Inspection Department" (hereinafter referred to as the Housing Department)
The subject of the dispute: the reinstatement of those in need of housing from the state housing fund
Review of the plaintiff's cassation complaint PLOT:
By decision of the Housing Commission No. 137 dated June 28, 2011, AA was registered as needing housing from the state housing stock in the category "persons with disabilities group 1 and 2" from June 13, 2011 with a family of three people.
On August 28, 2019, AA was removed from the register of those in need of housing due to the presence of an apartment located at the address: A. region, Sh. district, village of B., A.B. lane, 4, apartment No. 3.
This apartment was legalized by AA on December 19, 2006 and alienated on September 11, 2019.
Judicial acts:
1st instance: the claim is satisfied.
It was decided to oblige the Housing Department to restore AA on the register of those in need of housing from the state housing stock by category
"persons with disabilities of groups 1 and 2" since June 13, 2011. Appeal: the court's decision remains unchanged. Cassation: judicial acts are upheld.
Conclusions: by resolving the dispute and satisfying the plaintiff's claims, the local courts, applying the principle of protecting the right to trust, concluded that the defendant unlawfully removed the plaintiff from the housing waiting list.
The Judicial Board agrees with the conclusions of the lower courts, as they are based on the correct application of substantive law and the circumstances of the case.
In accordance with the second part of Article 5 of the CPC, the task of administrative proceedings is the fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public relations.
By virtue of article 13 of the CPC, the trust of a participant in an administrative procedure in the activities of an administrative body or official is protected by the laws of the Republic of Kazakhstan.
According to subparagraph 2 of Article 68 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter – the Law) socially vulnerable segments of the population include people with disabilities of the first and second groups.
The courts have reliably established that AA is a disabled person of the second group without a period of re-examination, has two children in the family, born in 1990 and 1991, disabled since childhood with the second disability group.
At the time of her placement in the queue, AA belonged to the category of vulnerable segments of the population and the presence of an apartment with a living area of 33 square meters did not provide the family with housing appropriate to the living conditions, since by virtue of the article
75 of the Law, a dwelling from the state housing stock or a dwelling rented by a local executive body from a private housing stock is provided in the amount of not less than fifteen square meters and not more than eighteen square meters of usable space per person, but not less than a one-room apartment or a dormitory room.
However, when registering, the authorized body was obliged to check the plaintiff for compliance with the conditions for registering those in need of housing, but these requirements of the Law were not fulfilled, a favorable decision was made regarding the plaintiff, although it was possible to request the necessary information from the authorized bodies.
Consequently, an error made by the authorized body during registration cannot violate the plaintiff's right to receive housing from the state housing stock, since the plaintiff's trust in the actions of the authorized body is subject to judicial protection.
The arguments of the author of the cassation appeal are identical in their content, meaning and purpose to the arguments presented in the courts of the first and appellate instances. These arguments were reviewed by the court of appeal and given a proper legal assessment. No new arguments are given in the cassation appeal.
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