An ownerless dwelling for which the ownership of citizens and non-governmental legal entities is registered in the legal cadastre

In the late 1990s and early 2000s, in order to preserve the housing stock, new tenants moved into apartments abandoned by the owners. At the same time, the basis for the settlement were acts of local executive bodies, lease agreements with KSK, and in some cases, there were facts of unauthorized settlement in empty, abandoned apartments. An analysis of the received cases shows that, as a rule, the claims of the long-term owners who settled in an abandoned dwelling are satisfied by the courts. However, there are examples where courts decide to dismiss a claim in similar circumstances. The Stepnogorsk City Court of the Akmola region satisfied S.'s claim for recognition of ownership of the apartment due to the statute of limitations. It follows from the case file that the apartment is registered under the ownership of D., who died on November 8, 1998. After her death, the inheritance case was not opened. According to the act of January 6, 2000, the apartment was in an uninhabitable condition. After 7 years after the death of the owner, the apartment was provided to the plaintiff, who restored the dwelling and has been living in it since that time. Earlier, the akimat of the city of Stepnogorsk filed a lawsuit to declare the apartment ownerless and entered communal ownership.

An ownerless dwelling for which the ownership of citizens and non-governmental legal entities is registered in the legal cadastre

The decision of the Stepnogorsk City Court of July 1, 2016, which entered into force, denied the claim of the akimat. At the same time, in support of the refusal of the claim to the akimat, the court, with reference to paragraph 3 of Article 242 of the Civil Code, indicated that ownerless immovable property owned by citizens or non-governmental legal entities that own such property as their own cannot be registered and transferred to communal ownership. The court also assessed that the plaintiff was moved into the apartment in order to preserve housing, by order of the local executive body of the city of Stepnogorsk, which identified 765 abandoned apartments due to population migration, 659 of them were looted. Since there was a huge debt to the energy supply organization, in order to preserve housing, the local executive body began to work on settlement. The court of appeal, overturning the decision of the court of first instance and rejecting S.'s claim, considered that her ownership was unfair, since the plaintiff lives in the apartment under a lease agreement with KSK, and KSK is not the owner of the housing and was not entitled to dispose of it. Thus, the appeal did not take into account the provisions of paragraph 3 of Article 242 of the Civil Code in the new version, the conclusions of the previous court decision with the participation of the same persons, as well as the factual circumstances of the case, from which it follows that the long-standing owner restored the abandoned dwelling. In the case of K.'s claim. the same Stepnogorsk city courts made the opposite decision to satisfy the claim. It follows from the circumstances of the case that the owner of the apartment died, and the inheritance was not registered after his death. The apartment was abandoned, people without a fixed place of residence gathered in it, the KSK boarded up the apartment several times. The plaintiff, knowing that in order to preserve the housing stock, local executive authorities occupied abandoned apartments, appealed to the KSK with a request to settle it, but the lease agreement was not documented. The plaintiff has restored his home and has been using it since 2010. The Aktau City Court No. 2 rejected K. K. P.'s claim under similar circumstances.

According to the case file, the apartment is registered on the right of ownership for P. There is evidence of the death of the owner in 1998 in the Russian Federation, after the death of the owner, an inheritance case was opened, but the certificate of inheritance was not issued due to the fact that the courts refused to restore the deadline for the applicant (the son's cohabitant) to accept the inheritance. It was also established that the disputed apartment was empty, without doors and windows, it was used to house a person without a fixed place of residence, the plaintiff restored the dwelling. Having worked at the Housing and Communal Services Company "OO SP "A" as a plumber since 2003, on December 2, 2004, K. signed a lease agreement with the specified organization. The court of first instance concluded that there was a lack of good faith, since the apartment had passed into the possession of the plaintiff from the housing department "OO SP "A", which had no legal rights to dispose of it. The Court of appeal agreed with the conclusions of the court of first instance and pointed out that the plaintiff's residence in the apartment was due to a contractual relationship with a person who did not have the right to move in, and therefore the apartment was provided temporarily, pending the announcement of heirs. The plaintiff became the owner unlawfully, as a result of actions to dispose of private property by a person who does not have such a right.

At the same time, the same Aktau city Court No. 2, under the same circumstances, made the opposite decision to satisfy the claim of E., who moved into an abandoned apartment in 2002 under an agreement with PKK Uyut. Similar examples of the adoption of opposing decisions on the claims of long-term owners who settled in ownerless apartments according to any written acts of local executive bodies or KSK are available in other courts of the republic. In some cases, the long-term owner is settled arbitrarily, in the absence of the above grounds, however, there is evidence of good faith ownership in the form of restoration of the dwelling. In the case of Shelyag O.G., it was established that the plaintiff worked in a store next to which there was an abandoned apartment. Previously, this apartment was rented to her employer, the store owner, who used the apartment as a warehouse. After the end of the lease period, the apartment was empty, the plaintiff restored it and began to live. It is also established that two former owners of the apartment died before settling in. The third owner died in 2011, during her lifetime she accepted the inheritance, but did not register her rights and abandoned the apartment.

By the decision of the Aksu city Court of Pavlodar region, the claim of Sh. satisfied. Summarizing judicial practice in relation to abandoned (abandoned) housing, it should be clarified that the courts must apply the provisions of paragraph 3 of Article 242 of the Civil Code and paragraph 2 of Article 23 of the Law "On State Property", according to which ownerless immovable property owned by citizens or non-governmental legal entities cannot be transferred to communal ownership. Courts of higher instances should pay attention to this fact when considering appeals and petitions for review filed by local executive bodies.

An ownerless dwelling for which the ownership of citizens and non-governmental legal entities is registered in the legal cadastre

If the owner of the immovable property left it without intending to retain his rights to it, and the local executive body or the condominium management body disposed of this property and, in order to preserve the housing stock, provided it for residence to other persons (the long-standing owner), then such ownership cannot be considered based on a contract or other title and it does not exclude the possibility of recognizing ownership rights due to the statute of limitations. The actions of the long-standing owner, who restored the property and bears the burden of its maintenance instead of the owner, testify to his good faith. 

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