Challenging the results of the property assessment
Regulatory framework The main regulatory acts governing relations in disputes over the allocation of shares are:
The Constitution of the Republic of Kazakhstan (Articles 6, 25, 26);
The Civil Code of the Republic of Kazakhstan;
The Law of the Republic of Kazakhstan dated April 16, 1997 No. 94 "On Housing relations",
Law of the Republic of Kazakhstan dated November 30, 2000 No. 109 "On Valuation activities in the Republic of Kazakhstan",
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 No. 10 "On certain issues of the application of legislation on the right of ownership of housing",
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 3 "On the practice of court consideration of disputes on the right to housing abandoned by the owner", No. 6 dated July 16, 2007 "On some issues of application of land legislation by courts",
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 8 "On certain issues of application by courts of legislation on compulsory alienation of land for state needs".
In accordance with article 17 of the Law of the Republic of Kazakhstan "On Valuation Activities in the Republic of Kazakhstan" dated November 30, 2000 No. 109, disputes arising between the appraiser and the customer in the course of valuation activities are resolved in court. However, the rules of record keeping do not specify in which proceedings and in what order applications for this category are considered.
According to Article 68 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the status of Bailiffs" dated April 02, 2010 No. 261-IV, as amended on December 29, 2014: "The assessment of the debtor's property is carried out by the bailiff, taking into account its market value and actual depreciation according to the methodology for assessing the debtor's property, approved by the authorized body. This may take into account the valuation agreement reached between the recoverer and the debtor.
If the assessment of individual items is difficult or the debtor or the recoverer objects to the assessment made by the bailiff, the bailiff appoints a specialist to determine the value of the property. The party to the enforcement proceedings who does not agree with the expert's assessment has the right to challenge it within ten calendar days from the date of familiarization (receipt of a copy, notification) in accordance with the procedure established by the civil procedure legislation of the Republic of Kazakhstan.
In case of disagreement with the assessment, the bailiff appoints a re-assessment, while the payment of the re-assessment specialist is made by the party to the enforcement proceedings that disagreed with the assessment."
In this case, the procedure for resolving the dispute in case of disagreement with the assessment is not specifically defined. That is, on the one hand, the results of the assessment can be appealed to the court within ten calendar days, and on the other hand, in case of disagreement with the assessment, a re-assessment is appointed.
Also, in paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on enforcement proceedings by courts" dated June 20, 2005 No. 2, as amended until December 2014, it is stated that - "When a claim is filed to challenge the valuation of property conducted by a specialist, the case is considered in a lawsuit, if necessary, the bailiff is involved as a co-respondent. The court verifies compliance with the requirements of the Law of the Republic of Kazakhstan "On Valuation Activities in the Republic of Kazakhstan" when assessing property, and evaluates the established circumstances taking into account the requirements of Article 257 of the Civil Code, which provides that upon termination of ownership, property is assessed based on its market price.
The market value of the property should be understood as the most probable price at which the property can be disposed of in a competitive environment, when all available information about this property is provided to potential buyers."
In December 2014, article 68 of the Law of the Republic of Kazakhstan "On Enforcement Proceedings and the Status of Bailiffs" dated April 02, 2010 No. 261-IV and paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of application by courts of the law on enforcement proceedings" dated June 20, 2005 No. 2 were amended.
According to these amendments, the party to the enforcement proceedings who does not agree with the assessment has the right to appeal the actions of the bailiff in accordance with the procedure established by the civil procedure legislation of the Republic of Kazakhstan. In the case of an appeal against the bailiff's actions based on the discrepancy between the value of the property and its assessment made during the execution of the enforcement document, the court must verify that the bailiff fulfills the requirements of article 68 of the Law. That is, according to the amendments made to the legislation, disputes related to disagreements with the assessment are subject to consideration by the court according to the rules of appeal against the actions of the bailiff established by Article 240-5 of the CPC.
For example, in the plaintiff's statement of claim, T. Kurmashev, to the defendant, UK-CONSULTING LLP, to challenge the valuation of the property, bailiff D. Toganaev, by his decision, invited a specialist from UK-CONSULTING LLP, an assessment was carried out. However, there were violations of the norms of the Law "On Evaluation Activities in the Republic of Kazakhstan" in conducting the assessment, and therefore he requested that the assessment be declared invalid. This statement was transferred to the proceedings of the Court of The families of the East Kazakhstan region and the decision of 7.04.2014 refused to satisfy the claim , due to the reasonableness of the evaluator's action during the assessment.
According to paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on enforcement proceedings by courts", in the case of an appeal against the actions of a bailiff based on the inconsistency of the value of property with his assessment made during the execution of the enforcement document, the court must verify the compliance of the bailiff with the requirements of Article 68 of the Law.
The court verifies compliance with the requirements of the Law of the Republic of Kazakhstan "On Valuation Activities in the Republic of Kazakhstan" when assessing property, and evaluates the established circumstances taking into account the requirements of Article 257 of the Civil Code, which provides that upon termination of ownership, property is assessed based on its market price.
In accordance with paragraph 1 of Article 240-5 of the CPC RK, a complaint may be filed against the actions (inaction) of the bailiff during the enforcement proceedings or against the refusal to commit such actions by the recoverer or debtor. The complaint is filed with the district court of the area served by the bailiff within ten days from the date of the action (refusal to perform the action) or from the day when the recoverer or debtor, who was not notified of the time and place of the action of the bailiff, became aware of it. Therefore, the plaintiff cannot appeal against the actions of the appraiser, the dispute must be resolved within the framework of Article 240-5 of the CPC RK. Thus, the court should not have accepted the application and ruled on this case.
An isolated case also took place in the Kazybekbisky district Court of the Karaganda region. The plaintiff N.R.I., Magnit LLP filed a lawsuit against the defendants of BTA Bank JSC, the bailiff, Bureau of Real Estate Valuation LLP to invalidate the assessment report. The case was decided on 02.02.2015 to dismiss the claim.
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