Claims for recognition of ownership rights due to the statute of limitations on unauthorized construction
Paragraph 12 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 5 "On certain issues of dispute resolution related to the protection of home ownership" established that an unauthorized residential building located on an illegally occupied land plot and built without obtaining the necessary permits or in violation of urban planning and building regulations and the rules established by Article 240 of the Civil Code of the Statute of limitations do not apply. It follows from the meaning of Article 240 of the Civil Code that a claim for recognition of ownership rights by virtue of the statute of limitations is a claim by the prescription owner against the owner. An object to which ownership is recognized must be put into civil circulation in accordance with the procedure established for similar objects. With respect to real estate built before 1991, the absence of state registration may mean that this property is state-owned. If the rights to immovable property are not registered and there is no reason to believe that it is state-owned, it is possible that the building to which the person requests to recognize ownership is an unauthorized construction. There is a different practice in the courts of Atyrau region in relation to unauthorized housing. It follows from the materials of the civil case on the claim of E. that she acquired an individual apartment building by an oral transaction, for which there were no title documents. According to the Government for Citizens Corporation, there is no data on the rights to a real estate object in the legal cadastre. The object is not listed on the balance sheet of the local executive body. The Makat district Court of Atyrau region made the correct decision to dismiss the claim due to the fact that the apartment building is an unauthorized construction. It follows from the case file on M.'s claim that by the decision of Akim of the Miyalinsky rural district dated April 28, 2006, No. 18, the land plot was provided to K. for the construction and operation of an apartment building. In fact, the apartment building was built, but not put into operation. Without commissioning, the building was sold to the plaintiff in an oral transaction. The decision of the Kyzylkoginsky district Court of Atyrau region actually recognized the ownership of an unauthorized building due to the statute of limitations. Similarly, the case was resolved by the Zhylyoy district Court of Atyrau region on the claims of K. and S. The court recognized the ownership of an apartment building that was built on an undelivered land plot. By the Kaztalov District Court of the West Kazakhstan region on the claim of S. The reasoning of the decision correctly states that the plaintiff erected an unauthorized building on his land plot without following licensing procedures, and therefore he must put it into operation, and if the relevant authorities refuse, appeal their actions. The Ministry of Economic and Social Affairs of the Aktobe region, according to the claim of IP A. for recognition of ownership of the kiosk, correctly denied the claim, since the building was erected without observing the necessary licensing procedures, is an unauthorized construction. The Kyzylorda City Court unreasonably satisfied P.'s claim for unauthorized construction. The operative part of the decision states verbatim: "Kyzylorda kalasy, Lapin koshesi nomersiz uy meken-zhaiy boyynsha ornalaskan turgyn uige P. menshik kygy tanylsyn."
It follows that the property does not have an address that could identify it among other similar properties. The facility was built in 1995, has not been put into civil circulation in accordance with the established procedure, and is an unauthorized construction. In this example, it should be pointed out that the object of ownership, by virtue of the statute of limitations, can be an individually defined thing, therefore, in the operative part of the decision, the courts should indicate the identification features of the thing that distinguish it from other similar things. The generalization showed that there is satisfaction of lawsuits against individual residential buildings built in the 60s and 70s, while there are no registered rights to both the building and the land plot.
It also appears from the case file that the plaintiff is not a developer and acquired property from unauthorized developers. There are no primary documents on the technical condition of such buildings in the case file. From the assessment reports carried out to determine the cost of the building, it often follows that these houses are adobe. Courts satisfy claims without checking the technical condition of buildings, without establishing whether the rights and interests of others are being violated, or whether the structure poses a threat to the life and health of citizens. In this regard, it is proposed to grant the right to appeal to the court in accordance with Article 242 of the Civil Code, that is, in recognition of the right to unauthorized construction, not only to persons who erected an unauthorized structure, but also to those who actually own it.
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