Cancellation of an entry in the registration sheet of the legal cadastre on the registration of duplicate sales contracts

No.6001-22-00-6ap/2646 dated 06/05/2023

Plaintiff: L.B.

Defendant: NAO "State Corporation "Government for Citizens"

Interested parties: L.G., A.S., L.E.

The subject of the dispute is to declare illegal actions to issue and register duplicate purchase and sale agreements for real estate, to cancel entries in the registration sheet of the legal cadastre on registration of duplicate purchase and sale agreements.

Review of the cassation appeal of the person concerned.

PLOT:

On 02/23/2022, an agreement was signed between L.B. and L.G. for the donation of a house and a land plot, under the terms of which L.B. gratuitously transferred to L.G.'s daughter an apartment building and a land plot by skadastrov No. 384, owned by common ownership, with an area of 0.1266hectares, on which it is located.

On 02/23/2022, L.B. and L.G. applied to the NAO for registration of the agreement.

On 28.02.2022, according to the results of consideration of the application, the Ministry refused state registration due to the absence of the donor's land share in the common shared ownership. The reason for the refusal to register the donation agreement was the absence of a land plot in the agreement, which had previously been entered into the legal cadastre on the basis of the applicants' own statements.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision remains unchanged.

Cassation: judicial acts are upheld.

Conclusions:

In accordance with paragraph 28 of Article 12, paragraph 5 of Article 53, Article 55 of the Land Code, a land share is a quantifiably determined share of participation, together with other persons, in the rights and obligations to a land plot, which may be allocated in the cases and under the conditions established by this Code and other laws of the Republic of Kazakhstan.

Land shares in a land plot that is in common shared ownership or shared land use are an independent object of land rights and obligations, unless otherwise established by legislative acts of the Republic of Kazakhstan.

When making transactions aimed at alienating a share in the right of shared ownership, the allocation of a land plot on account of land shares is not required. The seller of the land share is obliged to notify in writing the other participants in the shared ownership of the intention to sell his land to an outsider, indicating the price and other conditions on which he sells it. If the remaining participants in the shared ownership refuse to purchase or do not acquire the share to be sold within one month from the date of the written notification, the seller has the right to sell his share to any person.

According to subparagraph 5) of paragraph 1 of Article 25 of the Law "On State Registration of Rights to Immovable Property" (hereinafter referred to as the Law), refusal to accept documents submitted for state registration is allowed in case of submission of documents, the form and content of which are inconsistent with the legislation of the Republic of Kazakhstan.

According to paragraphs 1, 4 of Article 24, Article 31, title documents and other documents confirming the rights (encumbrances of rights) to immovable property and other objects of state registration must comply with the requirements of the legislation of the Republic of Kazakhstan imposed on them at the time of registration, with the exception of rights (encumbrances of rights) to immovable property that are not subject to mandatory state registration, as well as previously arisen rights (encumbrance of rights).

Title documents must contain information to the right holders entered in the registration sheet about the type of right to be registered (encumbrances of the right), address, registration code of the address (if any), as well as information about the real estate object necessary for the purposes of maintaining a legal cadastre.

The local courts, rejecting the claim, came to the unfounded conclusion that there was no reference in the donation agreement dated 02/23/2022 to the plaintiff's share of 0.0431 hectares, which had previously been registered in the legal cadastre.

From the court decision of 24.10.2003, which entered into force, it can be seen that the disputed land plot was divided between the parties and the boundaries of the co-owners' plots were determined.

 

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