Compulsory alienation and Determination of the amount of compensation for seizure for State needs

On November 05, 2019, the Zhetysu District Court of Almaty, composed of the presiding judge Kudiyarbekov N.Zh., with the participation of the plaintiff's representative, the representative of the defendants Sarzhanov G.T., having considered in open court the civil case No. 7515-19-00-2151 on the claim of the Akimat of Almaty (Hereinafter the Plaintiff) to ..... Nadezhda Ivanovna, ....... Alla Gennadievna, ......... Larisa Gennadievna (Hereinafter referred to as the Defendants) On: 1) compulsory alienation of a share of a land plot for state needs; 2) Determination of the amount of compensation for a share of a land plot forcibly alienated for state needs; 3) Compulsory termination of ownership; 4) Eviction of the Defendants from a land plot of 0.0363 ha and a part of a residential building with an area of 58.4 sq.m. located at the address: Almaty, Zhetysu district, street ......., 355, cadastral number 20-........-011-194, belonging to ....... Nadezhda Ivanovna, ....... Alla Gennadievna, ........ To Larisa Gennadievna. Having examined the case materials, having heard the explanations of the parties, in their entirety, having determined the range of circumstances relevant for the proper resolution of the case, the Court decided to partially satisfy the Claim of the Akimat of Almaty. In satisfaction of the claim of the Akimat of Almaty regarding the determination of the amount of compensation for shares of a land plot with an area of 0.0363 hectares and a part of a residential building located on it, located at: 355 street, Zhetysu district, Almaty, cadastral number 20-314-011-194 in the amount of 18 371 299 tenge – to refuse.

Compulsory alienation and Determination of the amount of compensation for seizure for State needs

To determine the amount of compensation for a share of a land plot with an area of 0.0363 hectares and a part of a residential building with an area of 58.4 square meters located at the address: Almaty, Zhetysu district, street ......., 355, cadastral number 20-314-011-....., in the amount of 25,599,952 tenge for subsequent payment ...... to Nadezhda Ivanovna, ........... To Alla Gennadievna, .......... To Larisa Gennadievna. Disagreeing with the court's decision, the Plaintiff filed an appeal with the arguments indicated in the complaint. We have brought to the attention of the Appeal Board that we consider the Decision of November 05, 2019 by the Zhetysu District Court of Almaty to be lawful and justified in accordance with all Legal Norms and the norms of substantive and procedural law, the rules of the Civil and Civil Procedure Code of the Republic of Kazakhstan to have been correctly applied by the court. However, despite all the third-party consideration by the court of the evidence provided by the parties, the Plaintiff motivates his complaint as follows: By a court decision, the Akimat of Almaty does not agree with the determination of the price for the land plot, considers it unreasonable and illegal in this part on the following grounds. The plaintiff provided a report on the valuation of real estate by an independent appraiser of CPI Grand Project LLP dated 28.08.2017. according to which the market value of the seized real estate is 18 371 299 tenge. The defendant submitted to the court the assessment report of the Evaluation Institute LLP dated 17.06.2019. with a clearly inflated market value of this seized object in 29,946,782 tenge. The court, without substantiation, submitted by the plaintiff to the Akimat, the report on the assessment of CPI Grand Project LLP dated 28.08.2017. in the amount of 18,371,299 tenge, he considered that they did not comply with the legislation on valuation activities and could not be accepted by the court, thus he attracted a specialist in the field of valuation activities of Razon LLP to produce another valuation report, according to which the market value of the seized property was already 25,599,952 tenge.

Thus, the court did not study and did not give an appropriate assessment to the available assessment reports, did not establish the range of circumstances relevant to the case, the court had to try to independently establish the objective value of the disputed property in accordance with the law by examining and giving a proper assessment to these evidences, which was not done, as a result, the Court mistakenly took as a basis an overestimated valuation of the LLP "Reason" without giving a full and reasonable explanation of this decision, and without substantiating why the assessment report submitted by the plaintiff is unacceptable evidence in the case and, accordingly, requests the Board to change the Decision of the Zhetysu District Court of Almaty dated 05.11.2019, canceling the determination of the price for the purchased land and house in the amount of 25,599,952 tenge. Monetary compensation for the Defendants should be determined in the amount of KZT 18,371,299. We do not agree with the above Arguments of the Plaintiff, since the Appeal, as well as the Statement of Claim, are unfounded and do not have any supporting facts as required by the CPC RK.  According to article 26 of the Constitution of the Republic of Kazakhstan, no one can be deprived of his property, except by a court decision. Compulsory alienation of property for state needs in exceptional cases provided for by law may be carried out on condition of equivalent compensation. By virtue of Article 67 of the Law "On State Property", the value of a land plot, as well as immovable property located on a land plot alienated for state needs, is determined in the amount of their market value, regardless of the grounds for the rights to the land plot. The market value of the alienated land plot or other immovable property in connection with the seizure of the land plot for state needs is determined by the appraiser on the date of the assessment, taking into account the provisions of paragraph 1 of Article 208 of this Law.

The amount of compensation is determined in accordance with paragraphs 4 and 5 of Article 9 of the Civil Code of the Republic of Kazakhstan based on the value of property and losses in full caused to the owner or non-governmental land user as a result of the forced alienation of land for state needs and (or) caused by the early termination of performance by the owner or non-governmental land user obligations to third parties. The amount of compensation is determined in tenge. According to P. 1 of Article 208 of the above-mentioned Law, when assessing a land plot or other immovable property alienated for state needs in connection with seizure for state needs, the market value of this property shall be determined without taking into account its change as a result of the adoption of the resolution specified in paragraph 2 of Article 63 of this Law. In accordance with paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application by courts of legislation on the compulsory alienation of land for state needs", when examining reports, written consultations of specialists and other documents related to valuation activities, courts should check them for compliance with the provisions of regulatory legal acts providing for the procedure, standard and methodology estimates based on the market value of a land plot (land use rights), housing construction, and other real estate objects, as well as other property subject to valuation. At the same time, it should be borne in mind that the amount of monetary compensation for a forcibly alienated land plot cannot be determined based on its regulatory or cadastral price, since they do not reflect the market value of the land plot, except in cases provided for in paragraph 2 of Article 67 of the Law on State Property. According to paragraph 11 of the Requirements for the form and content of the assessment report approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated May 3, 2018 No. 501, the total value of the valuation item indicated in the assessment report is recognized as recommended for the purposes of making a transaction with valuation items if from the date of the assessment report to the date of the transaction with the valuation item or the date of submission of the public offer has passed no more than six months.

Compulsory alienation and Determination of the amount of compensation for seizure for State needs

By that time, the Plaintiff needs to read page 2 of the report on the valuation of disputed real estate of CPI Grand Project LLP dated 28.08.2017, according to which the market value of the seized property amounted to 18 371 299 tenge, which states "the total value of the valuation object indicated in the valuation report is recognized as recommended for the purposes of making a transaction with valuation objects, if from the date of the valuation report no more than six months have passed before the date of the transaction with the valuation object or the date of submission of the public offer," hence the unfounded arguments indicated in the Appeal. Assessment report of a specialist in the field of valuation activities of Razon LLP, according to which the market value of the seized property has already amounted to 25,599,952 tenge. This report reflects the actual value of the real estate being purchased for state needs. Upon withdrawal, the Defendants will need to move and purchase new housing, and therefore the Defendants will incur certain costs. The calculation of the value of real estate is based correctly, taking into account current and approved prices and tariffs. Therefore, real estate should be determined by market value. According to the norms, art.65 of the CPC RK - each party must prove the circumstances to which it refers both on the basis of its claims and objections, and in accordance with art.66 of the CPC RK - evidence is provided by the parties and other persons involved in the case. And by virtue of paragraph 2 of Article 68 of the CPC RK, in accordance with Article 16 of this Code, a judge evaluates evidence according to his inner conviction. We believe that, in violation of the norms of the civil procedure legislation of the Republic of Kazakhstan, the plaintiff has not submitted to the court any evidence of the legality of the stated claims for the cancellation of the decision. By filing an appeal, the Plaintiff delays the execution of the lawful decision rendered on November 05, 2019 by the Zhetysu District Court of Almaty. During the consideration of the case, the court objectively and comprehensively investigated all the circumstances regarding the claim, gave a correct legal assessment of the evidence presented by the parties, correctly applied the law, we believe that there are no grounds for revoking the decision provided for in Chapters 52, 53 of the CPC RK. Based on the above and in accordance with Chapters 52, 53 of the CPC of the Republic of Kazakhstan, the Court was asked to: The decision of the Zhetysu District Court of Almaty dated 05.11.2019 in the civil case No. 7515-19-00-2/2151 on the claim of the Akimat of Almaty to ...... Nadezhda Ivanovna, ........ To Alla Gennadievna, ......... Larisa Gennadievna - to leave unchanged; The appeal of the Akimat of Almaty against the Decision of the Zhetysu District Court of Almaty dated 05.11.2019 in the civil case No. 7515-19-00-2/2151 – to leave without satisfaction. On February 13, 2020, the Judicial Board for Civil Cases of the Almaty City Court, consisting of the presiding judge E.L. Isaeva, judges M.A. Kasimov, A.E. Ramazanov, with the participation of prosecutor Sh.A. Sarybaev, representative of the plaintiff R.E. Khrenov, defendant ... N.I., ...... L.G., ......... A.G., the representative of the defendant Sarzhanov G.T., having considered in the premises of the Almaty City Court a civil case on the claim of the Akimat of Almaty to ..... Nadezhda Ivanovna, ......... To Alla Gennadievna, ............ Larisa Gennadievna on the compulsory alienation (purchase) of a land plot and other immovable property for state needs, received on the plaintiff's appeal against the decision of the Zhetysu District Court of Almaty on November 05. IN 2019, the judicial board DECIDED: The decision of the Zhetysu District Court of Almaty dated November 05, 2019 in this case should remain unchanged. The plaintiff's appeal is not satisfied.

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