Commentary to article 227. Common ownership of privatized housing of the Civil Code of the Republic of Kazakhstan  

The commented article regulates the right of joint ownership not to any, but only to privatized housing, i.e. housing that became the property of the employer and his family members through privatization. Therefore, other types of joint ownership may be established for housing that has become the property of citizens for other reasons than through privatization, for example, purchased by them, received under a donation agreement, as a result of a member of a housing (housing and construction) cooperative paying the entire amount of the share contribution for housing, but not joint ownership of the privatized the dwelling.

Privatized means a dwelling that, firstly, was part of the state housing stock at the time of privatization, and secondly, became the property of the tenant and family members permanently residing with him in accordance with the legislation on privatization.  

In accordance with the rules of the article being commented on, the participants in joint ownership of a privatized dwelling are the tenant and family members permanently residing with him, including minors and those temporarily absent. Family members, in order to become owners of a privatized dwelling, must permanently reside in it at the time of privatization. Therefore, persons who became members of the family that privatized the dwelling after privatization, as well as members of the tenant's family who did not live in it permanently at the time of privatization, do not become participants in joint ownership of the privatized dwelling. This also applies to children born to participants in joint ownership of housing after its privatization.

The right of joint ownership of a dwelling does not arise on the basis of the commented article, and persons who have become its owners by way of succession do not have the right of joint ownership of a privatized dwelling. These individuals may have other types of property.  

The circle of family members of the tenant during the privatization of housing is defined in Articles 13 (paragraph 1) and 21 of the Law on Housing Relations. Permanent cohabiting spouses and their children are certainly recognized as family members of the employer. The parents of the spouses, as well as children who have their own families and permanently reside with the employer, can be recognized as members of the employer's family only by mutual agreement.

In exceptional cases, other persons may also be recognized as members of the employer's family if they permanently reside with the owner and run a common household with him. Disabled dependents are family members of the employer if they permanently reside with him.  

In accordance with paragraph 6 of Article 13 of the Law on Housing Relations, a dwelling (apartment) inhabited by several tenants can be privatized only with the consent of all tenants and their adult family members. In this case, the dwelling becomes the common shared, and not the joint property of all tenants.

The privatized dwelling becomes the joint property of the tenant and his family members only on condition that the contract between them does not provide otherwise.

The right of joint ownership of a dwelling arises from the moment of its registration with the registering authority.

The alienation of a privatized dwelling, which is in common joint ownership, is allowed only with the consent of all owners. If the transaction affects the interests of minor children, the consent of the guardianship authority to the transaction is required (clause 3, Article 13 of the Law on Housing Relations).

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The commentary was prepared within the framework of the scientific and practical research program of the Scientific Research Center of Private Law of the Kazakh State Law University.  

Head of the working group on the preparation of the draft Civil Code of the Republic of Kazakhstan, Corresponding Member of the Academy of Sciences of the Republic of Kazakhstan, Professor Suleimenov M.K.

Deputy head Professor Basin Yu.G.