Challenging the legality of granting or refusing to grant the right of private ownership of land plots
Challenging the legality of granting or refusing to grant rights to land plots is the largest number of administrative cases considered by the courts of the republic in this category.
The procedure for granting land plots is regulated by article 43 of the Land Code. This norm regulates the general procedure for granting the right to a land plot, with the exception of the case of granting a land plot for the construction of an object within a settlement and lands put up for auction (auctions) in accordance with Article 48 of the Land Code.
The provision of state-owned land plots to the ownership of citizens and non-governmental legal entities entitled to purchase land plots in private ownership is carried out on a reimbursable basis.
The provision of land plots to the ownership of citizens and non-governmental legal entities may be carried out free of charge in cases provided for by the Land Code and other legislative acts of the Republic of Kazakhstan.
In accordance with subparagraph 5) of paragraph 1 of Article 48 of the Land Code, the provision of land plots or the right to lease land plots that are in state ownership and not provided for land use is carried out at auctions (auctions), except in cases when a land plot or the right to lease a land plot is provided to individuals and legal entities for operation and maintenance buildings (structures, structures) belonging to them by right of ownership and (or) other property rights, including for the expansion and reconstruction of buildings (structures, structures) in the adjacent territory in accordance with architectural and urban planning and (or) construction documentation approved in accordance with the procedure established by the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities.
The list of these grounds is exhaustive and, when applying this rule, courts should check their existence based on reliable and relevant evidence.
Thus, the courts of the Mangystau region refused to satisfy the claim of Mangystau Monitoring LLP to the akim of Aktau city on recognizing the decree on granting the right of temporary paid land use as illegal.
The requirements are motivated by the fact that the land plot was illegally provided to an adjacent land user without competitive procedures in the absence of appropriate grounds.
Local courts, agreeing with the violation by the defendant of the mandatory norms of the law on the provision of land on a competitive basis, refused to satisfy the claim, guided by the principle of protecting the right to trust.
The SCUD of the Supreme Court recognized this position of the courts as erroneous, since the administrative act affects state and public interests, was issued in the absence of reliable documents confirming the validity of the provision of a land plot outside competitive procedures, and the principle of protecting the right to trust in the legal relations of the parties is not applicable.
In accordance with article 133 of the APPC, the plaintiff has the right to file a claim for coercion and demand to adopt a favorable administrative act, the adoption of which was refused to him. According to article 52 of the Land Code, the right of ownership of buildings (structures, structures) entails, in accordance with the procedure established by law, the right of ownership of a land plot that is occupied by the specified immovable property.
These rights are inseparable from each other. For example, the decision of the SMAS of Astana dated March 28, 2022 satisfied Berdnikov's claim to the Akimat of Astana city for forcing to issue a resolution on the provision of a land plot.
The akimat is obliged to adopt a resolution on granting the plaintiff by buying out the right of private ownership of a land plot for the operation of a garage within one month from the date of entry into force of the court decision.
The basis for the satisfaction of the claim was that Berdnikov's ownership of a real estate object in the form of a garage was registered in the legal cadastre, the title document - the purchase and sale agreement was not recognized as invalid.
By virtue of article 52 of the Land Code, the right of ownership of a garage entails the right of ownership of the land plot occupied by it.
These rights are inseparable from each other.
The Akimat confirmed that all the necessary documents for the consideration and once-decision of the application for the acquisition of the right to a land plot for the operation of the garage have been provided in full.
The court's decision has not been appealed to higher authorities.
Another example, by the decision of the SMAS of the city of Nur Sultan dated February 23, 2022, the claim of Abilbayev, Evneev, etc. to the akimat of the city of Nur Sultan on coercion to accept the benefit of a pleasant administrative act was partially satisfied.
The Akimat of the city of Nur Sultan is obliged to adopt, taking into account the legal position of the court, a favorable administrative act in favor of the plaintiffs on the issue of granting ownership rights to land plots on which residential buildings belonging to them are located.
From the circumstances of the case, it can be seen that by the decree of the Akimat of Astana city dated June 8, 2017, a land plot for the design and construction of a cottage-type residential complex was provided to Goodstroy LLP for temporary paid land use. On June 14, 2017, a land lease agreement was concluded.
On November 20, 2017, Goodstroy LLP, in accordance with the procedure established by law, commissioned 16 residential buildings built on these land plots, registered ownership of the individual residential buildings built and sold them to individuals, including plaintiffs, under purchase and sale agreements.
The appellate instance reversed the decision and denied the claim, pointing out that the land plots were not provided to the plaintiffs for housing and communal services, and therefore they can only be provided on a reimbursable basis at cadastral value.
The cassation instance considered such conclusions of the court of appeal to be erroneous. The Court of Appeal incorrectly applied the norms of Articles 9, 52 of the Land Code. By the resolution of the SCAD of the Supreme Court, the decision of the SMAS was upheld (No. 6001-22-00-6ap/2360, (2).
Not in all cases, on the basis of article 52 of the Land Code of the MIO, it is possible to transfer the right of private ownership to a land plot.
Thus, in accordance with paragraph 2 of Article 26 of the Land Code, land plots occupied by the water fund cannot be privately owned, with the exception of land plots listed in paragraph 2 of Article 133 of this Code.
In the presence of these grounds, the refusal of the MIO to grant the right of private ownership of land plots and the issuance of a negative opinion by the land commission is lawful.
In accordance with the requirements of Article 10 of the APPC, when exercising administrative discretion, the administrative body and the official ensure a fair balance of interests of the participant in the administrative procedure and the company.
An administrative act, an administrative action (inaction) must be proportionate, that is, suitable, necessary and proportionate.
According to the principle of protection of the right to trust, enshrined in article 13 of the APPC, the trust of a participant in an administrative procedure in the activities of an administrative body, an official is protected by the laws of the Republic of Kazakhstan.
For example. Based on the decision of the general meeting of members of the Polygraphist agricultural company dated July 20, 1995, Duysen acquired land plot No. 7 "A". On December 3, 2020, the plaintiff filed an application addressed to the mayor of Almaty for granting ownership of the land plot. On December 28, 2020, by the decree of the Mayor of Almaty, the plaintiff was denied the right of ownership of the land plot.
The motive is the requested land plot according to the plan for the implementation of urban planning regulations for the development of functional zones of the territory of Almaty, approved by the decision of the Maslikhat of Almaty on November 20, 2006, and the draft detailed planning of the territory of Almaty, approved by the resolution of the Akimat of Almaty on January 26, 2016, is partially located within the "red lines" of the street, also given reference to article 102 of the Land Code.
By the decision of the SMAS of Almaty on February 28, 2022, the resolution of the akimat was declared illegal and canceled. The court ordered the Akimat of Almaty to eliminate the violation and adopt an administrative act in favor of the plaintiff, taking into account the legal position of the court.
By the resolution of the SCAD of Almaty dated May 19, 2022, the court's decision was left unchanged. By the resolution of the SCAD of the Supreme Court of March 9, 2023, the judicial acts were left unchanged (No. 6001-22-00-6ap/1646).
Satisfying the claim, the courts proceeded from the fact that the plaintiff's land plot is located within the boundaries of the city of Almaty, belongs to the lands of settlements, and not to agricultural lands, and is subject to use in accordance with their master plan, detailed planning and construction projects and projects of the land and economic structure of the territory.
According to the detailed planning project, the plot is located in the residential area of Zh-7, where gardening is allowed.
By virtue of article 32 of the Land Code, the granting of the right of land use means that a person is granted the right of land use not only by the State.
The granting 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, the city of republican significance, the capital, the district, the city of regional significance in accordance with the competence to grant the right to a land plot.
The right of land use is a proprietary right. The rules on the right of ownership apply to the right of land use.
The right of land use may be permanent or temporary, alienable or inalienable, acquired for a fee or free of charge.
When considering claims to challenge decisions of the land commission and akim's acts on the provision of agricultural land, the courts should be guided by the requirements of Article 43-1 of the Land Code, as well as the Rules for organizing and conducting a tender for granting the right of temporary paid land use (lease) for farming or farming, agricultural production, approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated 20 December 2018 No. 518 (hereinafter referred to as Rules No. 518).
The courts should take into account that the protocol decision of the land commission can be appealed to the court in accordance with the procedure provided for by the APPC within seven working days.
If the decision of the land commission is implemented, the decision of the akim as the final administrative act within the time limit established by Article 136 of the APPC is subject to challenge in court.
The main mistakes made by land commissions when conducting tenders:
- lack of quorum;
- incorrect calculation of the points of the participants of the course;
- applications that are subject to rejection as not meeting the requirements provided for by land legislation are allowed to participate in competitions.
Judicial practice in certain categories of disputes
An analysis of judicial practice has shown that claims in the following categories are most common:
- disputes on the legality of granting the right of private ownership and temporary land use to land plots;
- disputes related to the refusal of the Akimat to extend the lease agreement with the land user;
- disputes on the issues of changing the purpose of land plots.
Compliance with the deadlines for filing a lawsuit in court
Basically, the plaintiffs filed lawsuits challenging the decisions of the local executive body on granting the appropriate right to land plots.
In accordance with the first part of Article 136 of the APPC, claims for challenge, for coercion are filed with the court within a month from the date of delivery of the decision of the body considering the complaint based on the results of consideration of the complaint.
If the law does not provide for a pre-trial procedure or there is no body considering the complaint, the claim is filed within one month from the date of delivery of the administrative act or from the moment of notification in accordance with the procedure established by this Code and the legislation of the Republic of Kazakhstan.
A person who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the administrative act, has the right to file a lawsuit in court within a month from the day when the person learned or could have learned about the adoption of the administrative act, but no later than one year from the date of its adoption (part 5 of Article 136 of the APPC).
The analysis showed that local courts are more likely to make mistakes in the procedural law related to the restoration of the specified pre-trial period.
For example, by the decision of the SMAS of the North Kazakhstan region dated February 10, 2022, Amrin's claim to the akimat of Akzhar district was satisfied. The resolution of July 23, 2009 on granting the right to a land plot to Akzhar-Nan LLP was canceled.
By the decision of the Court of Appeal of the in station dated May 19, 2022, the court's decision was left unchanged.
The courts established that by the decree of the Akimat of September 8, 2003, the plaintiff was granted the right to temporary shared land use for a period of 49 years for the management of a peasant farm on a land plot.
The local courts proceeded from the fact that the right to a land plot was granted to the Partnership without the consent of the plaintiff, in connection with which the formation was recognized illegal.
By the decision of the SCAD of the Supreme Court of December 22, 2022, judicial acts of local courts were canceled, since the courts of first and appellate instances did not take into account that the plaintiff was not a participant in the administrative procedure when resolving the dispute on the merits. The disputed resolution transferred the right of land use to the Partnership.
The decision was issued on July 23, 2009, the deadline for filing a claim to challenge it for a person who did not participate in the administrative procedure for its adoption, including for Amrin, expired on July 23, 2010 (No. 6001-22-00-6ap/1467).
The local courts, in violation of the above-mentioned provisions of the procedural law, restored to the plaintiff the term that is suppressive, and considered the merits of the claim to be returned.
The courts should keep in mind that the norm of part 5 of Article 136 of the CPC is imperative and the one-year period provided for by it is suppressive and cannot be restored.
In accordance with part 8 of Article 136 of the APPC, the inability to restore the expired period of appeal to the court is the basis for the return of the claim. On the same grounds, the judicial acts of the SMAS of the Pavlodar region dated October 5, 2021 and the SCAD dated March 10, 2022, issued on the claim of the Altyndos farm to the akim of the Zangara rural district of the Pavlodar district of the Pavlodar region on recognition as illegal and cancellation of the decision on granting land use rights, were canceled in the cassation order.
The claim has been returned (No. 6001-22-00 6ap/1017). The courts, resolving the dispute on the merits, did not take into account and did not give a proper legal assessment to the fact that the procedures for granting the right to use land for the disputed land plot of the Urazbayev Farm took place in 2006-2008. The administrative claim was filed on August 6, 2021. At the same time, the plaintiff of the Altyndos farm was not a participant in these procedures. Similar violations took place in all regions of the republic. There are cases of significant violations of the procedural law when restoring the time limits for filing a claim, when the plaintiffs, being participants in the administrative procedure, challenge administrative acts issued long before the introduction of the APPC.
The grounds for restoring the missed deadline should be exceptional, and the courts should not facilitate the abuse of the right allowed by plaintiffs who knew or could have known about the violation of their rights.
The courts of appeal should take into account that if the court of first instance accepted the claim for production and considered on the merits with a decision, from the stage of appeal, taking into account the provisions of Article 126 of the CPC, it can be returned only after missing the probation period.
In other cases, the case is considered by the appellate instance on the merits. At the same time, if the term is restored by the court in the absence of sufficient grounds, the protection of the violated right may be denied upon the fact of abuse of the right.
Jurisdiction of disputes
For example, the SMAS of the Turkestan region received administrative claims from the Land Inspection Department of the Turkestan region to challenge the decisions of the Akim of the city, district, aul (rural) district, that is, a dispute arose between state bodies.
The Judicial Board of the cassation instance clarified on the issue that arose that if the parties to the cases are two state bodies that are equivalent in status (belong to the organization of state power, exercising on behalf of the state on the basis of the Constitution of the Republic of Kazakhstan, laws and other normative legal acts of the Republic of Kazakhstan on the management and regulation of socially significant public relations, control for compliance with the generally binding rules of conduct established by the state), and argue among themselves in the interests of the state, and not in the interests of individuals (legal entities) or an indefinite circle of persons, then in this case such claims will not be considered in administrative proceedings.
There are also questions about the claims of the MIO to the authorized bodies for land management about challenging the regulations submitted to them.
Taking into account that the order of the authorized body on the elimination of violations of the requirements of land legislation is an administrative act and, by virtue of paragraph 3 of Article 146 of the Land Code, is mandatory, the subjects of verification have the right to appeal it in the order of administrative proceedings.
For example: an order addressed to the akim of the district on the cancellation of the decree on the provision of a land plot and bringing guilty officials to justice is subject to challenge by the akim of the specified territorial unit.
At the same time, the claims of individuals and legal entities whose interests are indirectly affected by this regulation are subject to return, since the appealed administrative act was issued against another entity.
For example: according to the claim of NauryzbayDamu LLP to the Department of Land Management of the Akmola region on the knowledge of illegal actions to conduct an inspection, recognition as illegal and cancellation of regulations on the elimination of violations No. 95, 96 and 97 dated July 1, 2022 (No. 6001-22-00 6ap/2593).
Jurisdiction
When considering cases on disputes arising from land relations, compliance with the rules of jurisdiction, filing a claim by persons who have the right to claim, and the correct definition of the subject of the claim are of particular importance for resolving cases.
Jurisdiction is determined according to the rules of Articles 102 and 106 of the APPC.
At the request of the plaintiff, cases referred to the jurisdiction of a specialized district and equivalent administrative court may be considered by the court at the plaintiff's place of residence, with the exception of cases brought by specialized district and equivalent administrative courts located within cities of republican significance and the capital, regional centers.
The analysis showed that most of the applications submitted to the courts were accepted in compliance with the rules of jurisdiction and did not cause certain difficulties for the courts.
State duty
The procedure for paying the state fee is regulated by the norms of the CPC and the Tax Code.
The state fee is paid in the amount established by subparagraphs 2, 3 of paragraph 1 of Article 610 of the Tax Code, which is 0.3 monthly calculation index for individuals, 5 monthly calculation indices for legal entities.
The issue of reimbursement of court costs is resolved in accordance with the requirements of Article 122 of the CPC and Articles 109, 115, 117 of the CPC.
In accordance with Article 102 of the CPC, court costs consist of state fees and costs associated with the proceedings.
By virtue of the second part of Article 122 of the APPC, when returning a claim on the grounds provided for in the subparagraphs 5), 6), 12), 13), 14) and 15) of the second part of Article 138 of this Code, court costs are not reimbursed.
In accordance with the second part of Article 142 of the APPC, if the plaintiff's application for withdrawal of the claim is received in full at a court hearing or a preliminary hearing, the court explains the consequences of withdrawal of the claim.
In other cases, the judge returns the claim without calling the participants in the administrative process with a refund of the state fee.
For example, the definition of the SMAS of the Akmola region dated March 14, 2022 returned Teremkova's claim to the mayor of the city of Kokshetau for coercion to issue a favorable act under subparagraph 6) of part two of Article 138 of the CPC in connection with the recall.
The state fee paid at the time of filing the claim was not refundable, but in violation of the requirements of Article 122 of the APPC was refunded.
Such violations are not systemic in nature, in general, there were no problematic issues regarding court costs in the republic.
Legislation
The norms of substantive law that guided the courts in resolving disputes of the generalized category include currently in force legislative acts.
The main normative legal acts regulating issues related to the fields of the generalized category are:
1) The Constitution of the Republic of Kazakhstan;
2) Civil Code of the Republic of Kazakhstan No. 268-XIII dated December 27, 1994 (hereinafter referred to as the Civil Code);
3) Land Code of the Republic of Kazakhstan No. 442 dated June 20, 2003 (hereinafter referred to as the Land Code);
4) Administrative Procedural and Procedural Code No.350 VI dated June 29, 2020 (hereinafter referred to as the APPC);
5) The Civil Procedure Code of the Republic of Kazakhstan dated October 31, 2015 No.377-V ZRK (hereinafter – CPC);
6) Entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015 No. 375-V;
7) Budget Code of the Republic of Kazakhstan No. 95-IV dated December 4, 2008;
8) Environmental Code of the Republic of Kazakhstan dated January 2, 2021 No. 400-VI;
9) Law of the Republic of Kazakhstan "On Legal Acts" dated April 6, 2016 No. 480-V;
10) Law of the Republic of Kazakhstan "On State Property" dated March 1, 2011 No. 413-IV;
11) The Law of the Republic of Kazakhstan "On Local Public Administration and Self-government in the Republic of Kazakhstan";
12) 16) Normative resolution of the Supreme Court of the Republic of Kazakhstan "On judicial decision" dated October 2, 2003 No. 5;
13) Rules for maintaining the State Land cadastre in the Republic of Kazakhstan, approved by Order No. 160 of the Minister of National Economy of the Republic of Kazakhstan dated December 23, 2014;
14) Rules for the implementation of land management works on the development of a land management project, approved by Order No. 379 of the Minister of National Economy of the Republic of Kazakhstan dated May 6, 2015;
15) Rules for the provision of public services in the field of land relations, approved by Order No. 301 of the Minister of Agriculture of the Republic of Kazakhstan dated October 1, 2020.
If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by Law, the rules of the international treaty shall apply.
According to articles 10 and 12 of the Law "On Legal Acts", codes have greater legal force than laws; if there are contradictions in the norms of normative legal acts of different levels, the norms of an act of a higher level apply.
According to the general rule provided for in Article 4 of the Civil Code, Article 43 of the Law "On Legal Acts", normative legal acts apply to relations that arose after their entry into force.
Abbreviations used
SMAS - Specialized Inter-District Administrative Court
SCUD - Judicial Board for Administrative Cases
MIO - Local executive bodies
AVF - Audio and video recording
PDP - Detailed planning project
CH RK - Building regulations of the Republic of Kazakhstan
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