Claims for recognition of the right to unauthorized construction
A claim for the recognition of the right to an unauthorized construction is considered in a lawsuit, since the interested person files a claim for the protection of the violated or disputed right or legitimate interest by resolving a dispute about the right.
Paragraph 11 of the regulatory resolution "On Certain Issues of Resolving Disputes Related to the Protection of Ownership of Housing" provides exhaustive explanations on this issue.
Thus, claims for the recognition of the right to an unauthorized construction are brought and considered by the courts in all cases in the action proceedings.
In accordance with Article 23 of the Civil Procedure Code, the courts in civil proceedings consider and resolve cases for the protection of violated or disputed rights, freedoms and legitimate interests, unless in accordance with the law their protection is carried out in another manner.
Recognition of ownership of an unauthorized construction in court is an exclusive way of protecting the right, which can be applied if the person who applied to the court, for any reason beyond his control, was deprived of the opportunity to obtain title documents for a newly created or reconstructed real estate object in the manner established by regulatory legal acts governing relations related to urban planning activities, and relations on the basis of land use.
Such a claim cannot be used to simplify the registration of rights to a newly created real estate object in order to circumvent the norms of special legislation providing for a permissive procedure for the creation and introduction into civil circulation of new real estate.
In accordance with the Law on Architecture, the construction (reconstruction, restoration, expansion, technical re-equipment, modernization, overhaul) of facilities and their complexes is carried out according to the design (design and estimate) documentation (hereinafter referred to as the DED) developed in accordance with the detailed planning projects approved in accordance with the established procedure, the development project made on the basis of the general plan of the settlement (or their replacement scheme for the development and development of populated areas). points with a population of up to five thousand people).
By virtue of paragraph 1 of Article 63 of the Law, the design and estimate documentation for the construction of new buildings and structures, their complexes, must contain the town-planning justification of the location of the object, economic, architectural, space-planning, functional, technological, structural, engineering, environmental, energy-saving and other solutions to the extent necessary for the construction and commissioning of the completed facility.
Paragraphs 2 and 4 of Article 73 of the Law stipulate that the acceptance and commissioning of the constructed facility shall be carried out by the customer when it is fully ready in accordance with the approved project and there is a declaration of conformity, conclusions on the quality of construction and installation works and the compliance of the work performed with the approved project.
At the same time, the full readiness of the constructed facility is determined in accordance with the rules for organizing development and passing licensing procedures in the field of construction. Acceptance of the constructed facility for operation is documented by an act.
The act of acceptance of the constructed facility for operation is subject to approval. Approval of the acceptance certificate is made by the customer.
The date of signing the act of acceptance of the facility for operation is considered the date of its approval and the date of commissioning of the facility. By the Order of the Minister for Investments and Development of the Republic of Kazakhstan dated December 13, 2017 No867, the Rules for the acceptance of the constructed facility by the owner independently, as well as the forms of the acceptance certificate, were approved.
Thus, in accordance with the provisions of the Law, the owners of the land plot carry out the commissioning of the completed residential building independently. The basis for registration of rights to the erected structure is the act of acceptance of the constructed facility for operation.
The procedure for acceptance, the form of the act of acceptance of the constructed facility for operation by the owner shall be independently approved by the authorized bodies for architecture, urban planning and construction.
The act of acceptance of the constructed facility for operation by the owner is subject to mandatory registration in local executive bodies performing functions in the field 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 field of architecture, urban planning and construction in the manner prescribed by Chapter 9 of the Law.
In case of refusal by the authorized body in the field of architecture, urban planning and construction to issue technical documentation confirming the compliance of the building with the established urban planning, construction norms and rules, the owner of the building has the right to apply to the court to appeal against the actions (inaction) of state bodies, in accordance with the CAPP.
The courts mainly motivate their decisions by the norm contained in Article 244 of the Civil Code, referring to the technical inspection of the reliability and stability of the residential building submitted by the plaintiff, and the lack of any other possibility to recognize the ownership of the unauthorized structure.
Meanwhile, such cases are not subject to consideration in court due to the absence of a dispute. Plaintiffs need to draw up a commissioning certificate in accordance with the procedure established by law, and in case of refusal of the relevant authorities, appeal against their actions.
Circle of persons participating in the case.
Claims for the recognition of ownership of an unauthorized construction are considered by the courts in the course of action proceedings and are brought against the local executive body. The defendant in such cases should be the akims of the relevant administrative-territorial unit heading the local executive body. 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)
It should be borne in mind that if an unauthorized construction was created by contractors, the defendant will be the customer as the person on whose instructions the unauthorized construction was carried out.
In each specific case, the composition of third parties, whose participation is necessary for the correct resolution of the case, is determined by the court by the content of the subject and grounds of the plaintiff's claims, the defendant's objections and the applicable laws.
It should be borne in mind that the decision made in the case may affect the scope of the rights and obligations of these persons.
Replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, but such replacement is possible only with the consent of the plaintiff.
Paragraph 11 of the regulatory resolution "On Certain Issues of Resolving Disputes Related to the Protection of Ownership of Housing" clarifies that a claim for the recognition of ownership of an unauthorized housing is filed against a local executive body.
The plaintiffs are basically correctly indicated as the defendant, and at the same time there are claims when claims for recognition of the right to unauthorized construction by the plaintiff are made against an improper defendant.
Article 50 of the Civil Procedure Code provides that in the event of filing a claim against an improper defendant, the court, in order to prepare the case for trial, shall explain to the plaintiff his right to file an application for the replacement of the improper defendant with an appropriate one.
Replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, but such replacement is possible only with the consent of the plaintiff.
Jurisdiction
In accordance with Part 1 of Article 31 of the Civil Procedure Code, claims for rights to land plots, buildings, premises, structures, other objects firmly connected with the land (real estate) and others are filed at the location of these objects.
That is, disputes related to the recognition of ownership of an unauthorized construction are considered at the place of territorial location of the disputed real estate. If one of the parties to the case is a citizen, then such claims are considered by district courts.
In cases where the parties to the case are individuals carrying out individual entrepreneurial activity without forming a legal entity, and legal entities, the claim is subject to the jurisdiction of specialized economic courts in accordance with Part 1 of Article 27 of the Civil Procedure Code.
When determining the jurisdiction of cases related to the application of the provisions of Article 244 of the Civil Code, the courts must take into account the subject composition of the parties to the dispute and the nature of legal relations in their totality.
In order to become the object of relations regulated by Article 244 of the Civil Code, the construction made by a person must be unauthorized.
When accepting a claim for the recognition of ownership of an unauthorized non-residential premises, as well as a claim of an authorized body for the demolition of such a structure, questions of jurisdiction often arise, when the plaintiffs in the first case or the defendants in the second case are individuals who are not registered as an individual entrepreneur, but the disputed real estate object is used or will be used for the purposes of entrepreneurial activity.
Thus, in the absence of state registration of an individual as an individual entrepreneur, a dispute with his participation is subject to the jurisdiction of a court of general jurisdiction.
The fact that the subject of the claim is an industrial premises that can be used for business activities does not affect the jurisdiction of the dispute, since the law does not restrict the rights of individuals to own any property, including non-residential/industrial premises.
Thus, under the above circumstances, there are no grounds for refusing to accept for consideration by the court of general jurisdiction a claim for recognition of ownership or demolition of such an unauthorized construction.
State duty
In accordance with Article 607 of the Tax Code, the state duty is a mandatory payment charged for the performance of legally significant actions and (or) the issuance of documents by authorized state bodies or officials.
By virtue of Article 149 of the Civil Procedure Code, a document confirming the payment of the state duty is attached to the statement of claim.
Subparagraph 11) of Part 1 of Article 104 of the Civil Procedure Code stipulates that in claims for the right of ownership of immovable property, the amount of the claim is determined by the market value of such objects in the places of their location on the day of filing the claim.
Civil law disputes on the right of ownership to unauthorized constructions are related to property claims, respectively, subject to assessment. The disputed object is material and has a value in monetary terms, therefore, its price is determined by market value.
In accordance with sub-paragraph 1) of paragraph 1 of Article 610 of the Tax Code, unless otherwise provided by this paragraph, the state duty is charged on statements of claim of a property nature: from individuals - 1 percent, from legal entities - 3 percent of the amount of the claim.
The state duty when filing a claim for the recognition of ownership of an unauthorized construction is subject to payment based on the value of the property with the attachment to the application of documents on its market value (appraisal report, information statements on the market value of real estate).
The rules of Part 1 of Article 109 of the Civil Procedure Code on the distribution of legal costs with their award to the party in whose favor the decision was made, do not apply to the category of cases on claims filed against the local executive body for the recognition of ownership of an unauthorized construction, and the courts should not recover from local executive bodies in favor of the plaintiffs the costs of payment of the state duty.
It should be assumed that the plaintiff has chosen judicial protection of his rights, while the defendant in such cases does not violate the material rights of the plaintiff.
Earlier, the Supreme Court gave clarifications on this issue, including in the regulatory resolution "On the application by the courts of the Republic of Kazakhstan of the legislation on legal costs in civil cases".
These clarifications are reflected in the generalizations of the regions, which may indicate their widespread use in judicial practice and the absence of difficulties for the courts in this matter.
At the same time, there are cases when the courts accepted claims for proceedings and considered cases without assessing the market value of the real estate object or in the presence of only the title page of the real estate valuation report, while its research part, containing approaches and methods, description, technical and design characteristics and other information about the object of research was absent in the case materials.
The absence of a document confirming the market value of the erected object prevents the determination of the amount of the state duty to be paid when filing a claim.
Regulatory framework
The main regulatory legal acts governing the recognition of the right to unauthorized construction and subject to application in the consideration of cases of this category are:
- Constitution of the Republic of Kazakhstan; - Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code); - Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC);
- 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 Government in the Republic of Kazakhstan" (hereinafter referred to as the Law on Local Government);
- Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as the Code of Administrative Offenses);
- Code of the Republic of Kazakhstan "On Taxes and Other Obligatory Payments to the Budget" (Tax Code) (hereinafter referred to as the Tax Code);
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of Application of Legislation on the Right of Ownership of Housing" dated July 9, 1999 No. 10 (hereinafter referred to as the Regulatory Resolution "On Certain Issues of Application of Legislation on the Right of Ownership of Housing");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of Resolving Disputes Related to the Protection of Ownership of Housing" dated July 16, 2007 No5 (hereinafter referred to as the Regulatory Resolution "On Certain Issues of Resolving Disputes Related to the Protection of Ownership of Housing");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of Application of Land Legislation by the Courts" dated July 16, 2007 No 6 (hereinafter referred to as the Regulatory Resolution "On Certain Issues of Application of Land Legislation by the Courts");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the Application by the Courts of the Republic of Kazakhstan of the Legislation on Legal Costs in Civil Cases" dated December 25, 2006 No. 9 (hereinafter referred to as the Regulatory Resolution "On the Application by the Courts of the Republic of Kazakhstan of the Legislation on Legal Costs in Civil Cases");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On Certain Issues of Application of Inheritance Legislation by Courts" dated June 29, 2009 No5 (hereinafter referred to as the Regulatory Resolution "On Certain Issues of Application of Inheritance Legislation by Courts");
- Rules for the organization of development and passing licensing procedures in the field of construction, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 No750 (hereinafter referred to as the Rules for the organization of development)
- SNiP of the Republic of Kazakhstan, regulating relations in the field of architecture, urban planning and construction. When considering disputes, regulatory legal acts in force at the time of the emergence of the relevant legal relations are subject to application.
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