Commentary to article 49. Forced demolition of an illegally erected or erected building  The Code of the Republic of Kazakhstan on Administrative Offences  

     The compulsory demolition of an illegally erected or erected building is imposed by a judge in the cases provided for in the articles of the Special Part of this section.

     Demolition of an illegally erected or under construction building is a way of legal protection of the owner from the illegal actions of third parties, as well as a means of punishing the violator in the field of construction activities by applying such a sanction.

     The norm under study is applied exclusively as an additional measure of administrative punishment, and on the basis of art. 683 of the Administrative Code is applied only by a judge.

     For the first time, the demolition of an unauthorized building was provided for in national legislation as a measure of administrative punishment of the Administrative Code of 2001, and before that, such a measure was applied only in civil proceedings. In all countries of the post-Soviet space, the application of this measure has remained in the field of civil law, which is a breeding ground for scientific discussions. In fact, the administrative process is cheaper than civil proceedings and allows for a more expeditious resolution of disputes about illegal construction.

     The analyzed measure of administrative penalty is imposed only in cases stipulated by articles of the Special Part of the Administrative Code. Such cases are provided for in only two articles of the Administrative Code:

     1) 319 - illegal construction

     2) 360 - illegal construction on water protection zones and strips of water bodies, as well as illegal modification of the natural riverbed.

     It should be noted that for the illegal construction of buildings, structures and other facilities in water protection zones and strips (Article 360 of the Administrative Code), the judge, along with the application of an administrative fine, is obliged to apply to an individual or legal entity a measure of administrative punishment in the form of forced demolition of an illegally erected or erected structure. And for illegal construction, at the discretion of the judge, only a fine can be imposed, thereby legalizing unauthorized economic, hydrotechnical (water management) or household facilities.

     Unfortunately, the regulations of the Supreme Court do not clearly explain the cases when a judge must make a mandatory decision to impose an administrative penalty in the form of forced demolition of an illegally erected or erected building, which creates a breeding ground for corruption.

     According to paragraph 16 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 6 on the decision of a judge on the forced demolition of an illegally erected or erected structure, sometimes civil disputes about illegally seized lands have to be resolved.

     When considering claims for the return of illegally seized lands and the demolition of unauthorized buildings, the courts, in accordance with Article 244 of the Civil Code, must take into account the requirements of the land legislation of the Republic of Kazakhstan, legislation on architectural, urban planning and construction activities in the Republic of Kazakhstan and other legislation of the Republic of Kazakhstan.

     The concept and signs of unauthorized construction are formulated in art. 244 of the Civil Code. Thus, unauthorized construction is an apartment building, other structure, structure or other immovable property created on land not formed into land plots owned by the state, on a land plot that does not belong to the person who carried out the construction, as well as created without obtaining permits required in accordance with the land legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, the Legislation of the Republic of Kazakhstan, of the Republic of Kazakhstan on architectural, urban planning and construction activities in the Republic of Kazakhstan and other legislation of the Republic of Kazakhstan.

     A person who has carried out an unauthorized construction does not acquire ownership of it. It does not have the right to dispose of the building - to sell, donate, lease, or make other transactions. Unauthorized construction is subject to demolition by the person who carried it out or at his expense, except as provided for in paragraphs 3 and 4 of art. 244 of the Civil Code.

     The right of ownership to an unauthorized building may be recognized by a court for the person who carried out the construction on a land plot that does not belong to him, provided that this plot is provided to this person in accordance with the established procedure for the placement of the erected building. The property right of a developer to unauthorized construction on a land plot that does not belong to him, with the exception of land owned by the state, may be recognized by a court with the consent of the owner of the land plot and payment of compensation to the latter, provided that the construction meets the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities.

     The right of ownership to an unauthorized building cannot be recognized for these persons if the preservation of the building would entail a violation of the rights and legally protected interests of others or would endanger the life and health of citizens. Taking into account socio-economic expediency, an unauthorized building erected by a person on land plots (land not formed into land plots) owned by the state and not in land use is transferred to communal ownership with reimbursement of construction costs in the amount determined by the court.

     When unauthorized construction is carried out on a land plot used by state land users, taking into account socio-economic expediency, the unauthorized building is transferred to communal ownership with reimbursement of construction costs in the amount determined by the court from budgetary funds.

     According to Article 911 of the Administrative Code, a court order on the forced demolition of an illegally erected or erected building is enforced by the person against whom this administrative penalty was imposed. In case of non-fulfillment of the administrative penalty imposed by the court in the form of compulsory demolition of an illegally erected or erected building, the decision is voluntarily enforced by the authorized body in the order of enforcement proceedings.

Scientific and practical commentary to the Code of the Republic of Kazakhstan on Administrative Offences (article-by-article) from the Author's team:

     Bachurin Sergey Nikolaevich, Candidate of Law, Associate Professor – chapter 48 (co-authored with E.M. Khakimov);

     Gabdualiev Mereke Trekovich, Candidate of Law – Chapters 11, 21, 22, 23;

     Zhusipbekova Ainur Maratovna, M.yu.n. – chapter 13 (co-authored with Karpekin A.V.); chapters 33, 39 (co-authored with Seitzhanov O.T.);  

     Karpekin Alexander Vladimirovich, Candidate of Law, Associate Professor – chapter 13 (in collaboration with Zhusipbekova A.M.);

     Korneychuk Sergey Vasilyevich – chapters 2; chapter 6 (co-authored with O.T. Seitzhanov, E.M. Khakimov); chapter 8; chapter 25 (co-authored with E.M. Khakimov); articles 457-470, 488, 488-1, 491-506; chapters 28, 30, 52;

     Ilya Petrovich Koryakin, Doctor of Law, Professor – Chapter 49;

     Kisykova Gulnara Bauyrzhanovna, Candidate of Law – chapter 20;

     Omarova Botagoz Akimgereevna, Candidate of Law – chapters 17; chapter 18 (co-authored with B.A. Parmankulova); chapters 26, 31; chapter 32 (co-authored with B.A. Parmankulova);

     Parmankulova Bayan Askhanbaevna – chapter 18 (co-authored with Omarova B.A.); chapters 19, 32 (co-authored with Omarova B.A.); chapter 43 (co-authored with Tukiev A.S.);  

     Podoprigora Roman Anatolyevich, Doctor of Law, Professor - Chapter 24, articles 489, 489-1, 490;

     Porokhov Evgeny Viktorovich, Doctor of Law – Chapters 14, 15, 16, 29, articles 471-475;

     Seitzhanov Olzhas Temirzhanovich, Candidate of Law, Associate Professor, – chapter 4; chapter 5 (co-authored with E. M. Khakimov); chapter 6 (co-authored with S.V. Korneychuk, E.M. Khakimov); chapter 9; chapter 10 (co-authored with B.E. Shaimerdenov, V.V. Filin); chapter 33 (co-authored with Zhusipbekova A.M.); chapter 36 (co-authored with Shaimerdenov B.E.); chapter 39 (co-authored with Zhusipbekova A.M.);

     Smyshlyaev Alexander Sergeevich, PhD. – chapters 38, 40, 42, 43-1 (co-authored with A.S. Tukiev); chapter 44;

     Aslan Sultanovich Tukiev - Candidate of Law, Associate Professor – chapters 1, 3, 35; chapters 38, 40, 42, (co-authored with A.S. Smyshlyaev); chapter 43 (co-authored with B.A. Parmankulova); chapter 43-1 (co-authored with A.S. Smyshlyaev); chapter 44-1 (co-authored with Shipp D.A.); chapter 45; 46 (co-authored with Shipp D.A.); chapter 47;  

     Filin Vladimir Vladimirovich, Candidate of Law, Associate Professor – Chapter 10 (in collaboration with O.T. Seitzhanov, B.E. Shaimerdenov);  

     Yerzhan Maratovich Khakimov, M.yu.n. – chapter 5 (co-authored with O.T. Seitzhanov); chapter 6 (co-authored with O.T. Seitzhanov, S.V. Korneychuk); chapter 7; chapter 25 (co-authored with S.V. Korneychuk); chapters 34, 41; chapter 48 (co-authored with S.N. Bachurin); chapter 53;

     Shaimerdenov Bolat Yerkenovich, M.yu.n., – chapter 10 (co-authored with O.T. Seitzhanov, V.V. Filin); chapter 12; articles 476-487, 507-509; chapter 36 (co-authored with O.T. Seitzhanov); chapters 37, 50, 51.  

     Shipp Denis Alekseevich – chapters 44-1, 46 (in collaboration with A.S. Tukiev).

Date of amendment of the act:  01.01.2020 Date of adoption of the act:  01.01.2020 Place of acceptance:  100050000000 Authority that adopted the act: 103001000000 Region of operation:  100000000000 NPA registration number assigned by the regulatory body:  5 Status of the act:  new Sphere of legal relations:  029000000000 / 028000000000 / 029002000000 / 028004000000 / 029001000000 / 026000000000 / 001000000000 / 001008000000 / 030000000000 The form of the act:  COMM / CODE Legal force:  1900 Language of the Act:  rus  

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases