Claims for Recognition of Rights to Unauthorized Construction Related to the Protection of Housing Ownership Rights

A claim for recognition of rights to an unauthorized construction shall be considered under the action proceedings procedure, since the interested person applies for the protection of a violated or disputed right or legitimate interest through the resolution of a dispute over rights.

Paragraph 11 of the Regulatory Resolution “On Certain Issues of Resolving Disputes Related to the Protection of Housing Ownership Rights” provides comprehensive explanations on this matter.

Thus, claims for recognition of rights to unauthorized construction shall, in all cases, be filed with and considered by the courts under action proceedings.

Jurisdiction

In accordance with Part 1 of Article 31 of the Civil Procedure Code, claims concerning rights to land plots, buildings, premises, structures, other objects firmly attached to land (immovable property), and other property shall be filed at the location of such objects.

That is, disputes related to the recognition of ownership rights to an unauthorized construction shall be considered at the territorial location of the disputed immovable property.

If one of the parties to the case is an individual, such claims shall be considered by district courts.

Where the parties to the case are individuals carrying out individual entrepreneurial activities without forming a legal entity and legal entities, the claim shall fall within the jurisdiction of specialized interdistrict economic courts in accordance with Part 1 of Article 27 of the Civil Procedure Code.

Persons Participating in the Case

Claims for recognition of ownership rights to unauthorized constructions shall be considered by the courts under action proceedings and shall be brought against the local executive body. The defendants in such cases shall be the akims of the respective administrative-territorial units who head the local executive bodies. Depending on the category of the dispute, such claims may be brought against the owner of the land plot or against the developer (the person who erected the unauthorized construction).

Courts should bear in mind that if the unauthorized construction was carried out by contracting organizations, the customer shall be the defendant as the person on whose instructions the unauthorized construction was carried out.

In each particular case, the composition of third parties whose participation is necessary for the proper resolution of the case shall be determined by the court, taking into account the subject matter and grounds of the claimant’s claims, the defendant’s objections, and the applicable legislation.

It should be taken into account that the judgment rendered in the case may affect the scope of the rights and obligations of such persons.

State Duty

In accordance with Article 607 of the Tax Code, the state duty is a mandatory payment levied for the performance of legally significant actions and/or the issuance of documents by authorized state bodies or officials.

Pursuant to Article 149 of the Civil Procedure Code, a document confirming payment of the state duty shall be attached to the statement of claim.

Subparagraph 11) of Part 1 of Article 104 of the Civil Procedure Code provides that, in claims concerning ownership rights to immovable property, the value of the claim shall be determined based on the market value of such property at its location as of the date the claim is filed.

Civil-law disputes concerning ownership rights to unauthorized constructions constitute property claims subject to valuation. The disputed object is tangible and has a monetary value; therefore, the value of the claim shall be determined according to its market value.

According to Subparagraph 1) of Paragraph 1 of Article 610 of the Tax Code, unless otherwise provided for by that paragraph, state duty on statements of claim of a property nature shall be levied at the rate of 1 percent of the amount of the claim for individuals and 3 percent of the amount of the claim for legal entities.

When filing a claim for recognition of ownership rights to an unauthorized construction, the state duty shall be paid based on the value of the property, and documents confirming its market value shall be attached to the statement of claim (an appraisal report or information certificates on the market value of immovable property).

The rules set out in Part 1 of Article 109 of the Civil Procedure Code concerning the allocation of legal costs by awarding them to the party in whose favor the judgment has been rendered shall not apply to the category of cases involving claims brought against local executive bodies for recognition of ownership rights to unauthorized constructions. Courts should not recover from local executive bodies, in favor of claimants, expenses incurred for the payment of the state duty.

It should be proceeded from the position that the claimant has chosen judicial protection of his or her rights, while the defendant in such cases has not violated the claimant’s substantive rights. The Supreme Court has previously provided explanations on this issue, including in the Regulatory Resolution “On the Application by the Courts of the Republic of Kazakhstan of Legislation on Legal Costs in Civil Cases.”

These explanations are reflected in the regional reviews of judicial practice, which may indicate their widespread application in judicial practice and the absence of difficulties for courts in resolving this issue.

At the same time, there have been cases where courts accepted claims for proceedings and considered cases without an assessment of the market value of the immovable property or where only the title page of an appraisal report on the immovable property was available. In such cases, the analytical section of the appraisal report, containing the approaches and methods applied, descriptions, technical and structural characteristics, and other information concerning the object of appraisal, was absent from the case materials.

Practice of Applying Substantive Law

In accordance with Article 23 of the Civil Procedure Code, courts, under civil proceedings, consider and resolve cases concerning the protection of violated or disputed rights, freedoms, and legitimate interests, unless their protection is provided by law through another procedure.

Judicial recognition of ownership rights to an unauthorized construction is an exceptional remedy for the protection of rights, which may be applied where a person applying to the court has, for reasons beyond his or her control, been deprived of the opportunity to obtain title documents for a newly constructed or reconstructed immovable property in accordance with the procedure established by regulatory legal acts governing relations connected with urban development activities and land use.

Such a claim may not be used to simplify the registration of rights to a newly created immovable property for the purpose of circumventing the provisions of special legislation that establish a permitting procedure for the creation of new immovable property and its introduction into civil circulation.

In accordance with the Law on Architecture, the construction (reconstruction, restoration, expansion, technical re-equipment, modernization, or capital repair) of facilities and their complexes shall be carried out on the basis of design (design and estimate) documentation (hereinafter referred to as the “Design Documentation”), developed in accordance with detailed planning projects and development projects approved in the prescribed manner and prepared on the basis of the master plan of a populated locality (or a substitute development and construction scheme for populated localities with a population of up to five thousand persons).

Pursuant to Paragraph 1 of Article 63 of the Law, the Design Documentation for the construction of new buildings and structures and their complexes shall contain urban planning justification for the location of the facility, as well as economic, architectural, spatial-planning, functional, technological, structural, engineering, environmental protection, energy-saving, and other solutions to the extent necessary for carrying out construction and commissioning the completed construction facility.

Paragraphs 2 and 4 of Article 73 of the Law provide that the acceptance and commissioning of a constructed facility shall be carried out by the customer upon its full readiness in accordance with the approved design and provided that a declaration of conformity and conclusions regarding the quality of construction and installation works and the conformity of the completed works with the approved design are available.

The full readiness of a constructed facility shall be determined in accordance with the rules governing the organization of development and the completion of permitting procedures in the construction sector. Acceptance of a constructed facility for operation shall be formalized by an acceptance certificate. The acceptance certificate of a constructed facility for operation shall be subject to approval. Approval of the acceptance certificate shall be carried out by the customer. The date of signing the acceptance certificate for the commissioning of the facility shall be deemed the date of its approval and the date the facility is commissioned.

By Order No. 867 of the Minister for Investments and Development of the Republic of Kazakhstan dated 13 December 2017, the Rules for the Independent Acceptance of a Constructed Facility for Operation by the Owner, as well as the forms of acceptance certificates, were approved.

Thus, under the provisions of the Law, owners of land plots shall independently carry out the acceptance for operation of a completed residential house. The acceptance certificate for the constructed facility for operation shall serve as the basis for the registration of rights to the erected structure.

The procedure for the independent acceptance of a constructed facility for operation by the owner and the form of the acceptance certificate for a constructed facility shall be approved by the authorized bodies in the fields of architecture, urban planning, and construction. The acceptance certificate for a constructed facility independently accepted for operation by the owner shall be subject to mandatory registration with the local executive bodies performing functions in the fields of architecture, urban planning, and construction.

It follows from the above that the owner of an unauthorized construction must apply to the authorized bodies in the fields of architecture, urban planning, and construction in accordance with the procedure provided for in Chapter 9 of the Law.

If an authorized body in the fields of architecture, urban planning, and construction refuses to issue technical documentation confirming that the construction complies with the established urban planning and construction standards and rules, the owner of the construction shall have the right to apply to the court to challenge the actions (inaction) of state bodies in accordance with the procedure established by the Administrative Procedure and Process Code.

Courts generally substantiate their decisions by referring to the provision contained in Article 244 of the Civil Code, citing the technical inspection of the reliability and structural stability of the residential building submitted by the claimant and the absence of any other possibility of recognizing ownership rights to the unauthorized construction.

Meanwhile, such cases are not subject to consideration by the courts due to the absence of a dispute.

Regulatory and Legal Framework

The principal regulatory legal acts governing the recognition of rights to unauthorized constructions and applicable when considering cases of this category include:

• The Constitution of the Republic of Kazakhstan;
• The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the “Civil Code”);
• The Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the “Civil Procedure Code”);
• The Land Code of the Republic of Kazakhstan (hereinafter referred to as the “Land Code”);
• The Law of the Republic of Kazakhstan “On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan” (hereinafter referred to as the “Law on Architecture”);
• The Law of the Republic of Kazakhstan “On Local State Administration and Self-Government in the Republic of Kazakhstan” (hereinafter referred to as the “Law on Local Administration”);
• The Code of the Republic of Kazakhstan on Administrative Offences (hereinafter referred to as the “Code of Administrative Offences”);
• The Code of the Republic of Kazakhstan “On Taxes and Other Mandatory Payments to the Budget” (Tax Code) (hereinafter referred to as the “Tax Code”);
• Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated 9 July 1999 “On Certain Issues of the Application of Legislation on Housing Ownership Rights” (hereinafter referred to as the Regulatory Resolution “On Certain Issues of the Application of Legislation on Housing Ownership Rights”);
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated 16 July 2007 “On Certain Issues of Resolving Disputes Related to the Protection of Housing Ownership Rights” (hereinafter referred to as the Regulatory Resolution “On Certain Issues of Resolving Disputes Related to the Protection of Housing Ownership Rights”);
• Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 16 July 2007 “On Certain Issues of the Application of Land Legislation by the Courts” (hereinafter referred to as the Regulatory Resolution “On Certain Issues of the Application of Land Legislation by the Courts”);
• Regulatory Resolution No. 9 of the Supreme Court of the Republic of Kazakhstan dated 25 December 2006 “On the Application by the Courts of the Republic of Kazakhstan of Legislation on Legal Costs in Civil Cases” (hereinafter referred to as the Regulatory Resolution “On the Application by the Courts of the Republic of Kazakhstan of Legislation on Legal Costs in Civil Cases”);
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated 29 June 2009 “On Certain Issues of the Application by the Courts of Legislation on Inheritance” (hereinafter referred to as the Regulatory Resolution “On Certain Issues of the Application by the Courts of Legislation on Inheritance”);
• The Rules for Organizing Development and Completing Permitting Procedures in the Construction Sector, approved by Order No. 750 of the Minister of National Economy of the Republic of Kazakhstan dated 30 November 2015 (hereinafter referred to as the “Rules for Organizing Development”);
• Construction Norms and Rules of the Republic of Kazakhstan regulating relations in the fields of architecture, urban planning, and construction.

When considering disputes, the regulatory legal acts in force at the time when the relevant legal relations arose shall be applied.

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