Compulsory alienation of a land plot for state needs | Compulsory purchase of immovable property in favor of the state
On February 13, 2020, the Judicial Board for Civil Cases of the Almaty City Court with the participation of the prosecutor, the representative of the plaintiff, the defendant SN.I., KL.G., ZH.G., the representative of the defendant Sarzhanov G.T., considered in the premises of the Almaty City Court a civil case filed by the Akimat of Almaty against SN.I., KL.G., ZH.G., 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 dated November 05, 2019. The plaintiff, the Akimat of Almaty, filed a claim against the defendant SN.I., KL.G., Zh.G., with demands for forced alienation, in order to implement the Almaty Master Plan approved by the Resolution of the Government of the Republic of Kazakhstan dated December 19, 2002 No. 1330, based on the resolution of the Akimat of Almaty "On the beginning of forced alienation land plots or other immovable property in connection with the seizure of land for state needs" dated November 30, 2017. No. 4/392-2390 for the construction of an automobile transport facility, the share of the land plot belonging to the defendants, cadastral No. 20-314-011-194, with an area of 0.0363 ha (total area of 0.0656 ha) and a residential building with a total area of 58.4 sq.m. located at the address: Almaty, Zhetysu district, pr. From..., 355 building. Akimat of the city Almaty motivated its claims by the fact that the defendants were offered compensation for a land plot and a house forcibly alienated for state needs in the amount of 18,371,299 tenge (of which: 7,567,209 tenge – the market value of land improvements; 10,452,432 tenge – the market value of land 2 plots; 351658 – the market value of green spaces), determined by the real estate valuation report of CPI Grand Project LLP dated August 28, 2017, however, the defendants refused to conclude the contract.
By the decision of the Zhetysu district Court Almaty, November 05, 2019, the plaintiff's claims were partially satisfied and it was decided: To forcibly alienate for state needs 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, 355 S street, cadastral number 20-314-011- 194, belonging to CH.I., KL.G., Zh.G., 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 sq.m. located at the address: Almaty, Zhetysu district, S street...., 355, cadastral number 20-314-011-194, in the amount of 25,599,952 (twenty-five million five hundred ninety-nine thousand nine hundred fifty-two ) tenge for subsequent payment of SN.I., KL.G., ZH.G.,. Forcibly terminate the ownership of CH.I., KL.G., zh.G., to a share of a land plot with an area 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, 355 S. Street, cadastral number 20-314-011- 194.
Compulsory alienation of a land plot for state needs | Compulsory purchase of immovable property in favor of the state
After payment of monetary compensation in the amount of 25,599,952 (twenty-five million five hundred ninety-nine thousand nine hundred fifty-two ) tenge to evict SN.I., KL.G., Zh.G., from a share of a land plot with an area 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, 355 S. street, cadastral number 20-314-011-194. Collect from SN.I., KL.G., Zh.G., to the state revenue a state duty of 1,262 (one thousand two hundred and sixty-two) tenge from each. To refuse to satisfy 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 part of a residential building located on it, located at 355 S Street, Zhetysu district, cadastral number 20-314-011-194, in the amount of 18 371 299 tenge, forcibly alienated for state needs. Having disagreed with the court's decision, the plaintiff asks to change it, in part 3, to reduce the amount of monetary compensation for the purchased object from 25,599,952 tenge to 18,371,299 tenge. Having listened to the position of the plaintiff's representative, who fully supported the arguments of the appeal, having heard the objections of the defendants and their representative, the prosecutor's conclusion on leaving the decision unchanged, having examined the arguments of the complaint, having studied the case materials, the board believes that the contested judicial act should be left unchanged on the following grounds. According to Articles 426, 427 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter CPC), when appeals or protests are dismissed due to the lack of new arguments, the reasoning part of the resolution indicates only the absence of grounds provided for in this Code for making changes to the decision of the court of first instance or its cancellation. Article 427 of the CPC contains a list of grounds for revoking or changing a court decision on appeal. No grounds have been established for the cancellation or amendment of the court's decision.
The court of first instance correctly applied the norms of substantive and procedural law, correctly identified and clarified the range of disputed circumstances, and gave them a proper legal assessment. The court of first instance lawfully established and reasonably satisfied the plaintiff's claim regarding the compulsory alienation for state needs of the land plot cadastral No. 20-314-011-194, with an area of 0.0363 ha., a residential building with a total area of 58.4 sq.m. located on it. at the address: Almaty, Zhetysu district, S.... street, 355, belonging to CH.I., KL.G., zh.G., with his release, after payment of monetary compensation. The parties to the process, the decision in this part is not disputed. In view of the above, the judicial board does not consider it necessary to re-state the motives and grounds for satisfying the claim in this part. The plaintiff is challenging the court's decision regarding the determination of the price for the cadastral land plot No. 20-314-011-194, with an area of 0.0363 hectares, located on it, and a residential building with a total area of 58.4 square meters.m. at the address: Almaty, Zhetysu district, S... street, 355, owned by CH.I., KL.G., ZH.G., in the amount of 25,599,952 tenge for subsequent payment to the defendants, believing that the market price of the object is overstated and should be determined at the market price of the object according to the report on the valuation of real estate of CPI Grand Project LLP dated August 28, 2017, according to which the market value of the seized property amounted to 18,371,299 tenge (of which: 7,567,209 tenge – the market value of land improvements; 10,452,432 tenge – the market value of the land; 351,658 – the market value of green spaces). The Judicial Board cannot agree with these arguments for the following reasons. In accordance with paragraph 13 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 8 "On certain issues of application by courts of legislation on the compulsory seizure of land for State needs", the courts, when resolving disputes on determining the amount of monetary compensation, resolve all issues of compensation to the owner for losses caused by the termination of ownership rights in connection with forced alienation. the land plot is for state needs, while the property is estimated based on its market price. Disagreeing with the assessment indicated by the plaintiff, the defendants submitted an assessment report dated June 17, 2019 to Institute of Assessment LLP, according to which the market value of the seized property was determined in the amount of 29,946,782 tenge (of which: 20,733,199 tenge – the market value of land improvements; 7,669,217 tenge – the market value of the land plot; 1,544,366 – market value of green spaces) Since there were disagreements in the valuation documents provided by the parties, as a result of which it was not possible to find out the amount of compensation for the property being forcibly disposed of, the court engaged a specialist in the field of valuation activities to provide written consultations and to produce a written assessment report - Razon LLP.
According to the report of the specified specialist for No. 107-R dated October 21, 2019, the market value of the valuation object was 25,134,433 tenge, of which 11,144,508 tenge was a land plot, 13,093,253 were buildings, 896,672 were green spaces, 465,519 were losses related to the seizure. The court, having examined all the submitted appraisers' reports, legitimately considered that when determining compensation, the report of Razon LLP should be taken into account for the following reasons. Since the amount of damages is determined in accordance with paragraphs 4 and 5 of Article 9 of the Civil Code of the Republic of Kazakhstan (hereinafter CC), if there is a dispute by the court, based on the value of property and losses in full caused to the owner or non-governmental land user as a result of forced alienation of land for state needs and (or) caused by early termination of performance as the owner or non-governmental land user of obligations to third parties, the judicial board recognizes the defendant's objections as justified., that the determination of the value of the land plot belonging to him is subject to taking into account its market price. According to part 2 of Article 67 of the Law "On State Property", as amended on January 21, 2019, 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. At the same time, 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. Therefore, when determining the price of a real estate object being purchased for state needs, it is necessary to proceed from its market value, determined by an appraiser, an expert, which was carried out by the court of first instance, and which the judicial board agrees with.
Compulsory alienation of a land plot for state needs | Compulsory purchase of immovable property in favor of the state
Documents related to evaluation activities and expertise do not have a pre-determined force, and are subject to evaluation by the court along with other evidence in the case. At the same time, the court of first instance reasonably took as the basis for determining the market price of an object all the evidence presented in the case, in their entirety, taking into account all the circumstances of the case, the characteristics of the seized object, reasonableness and fairness, the requirements contained in Article 68 of the CPC, using the criteria of relevance, admissibility and reliability of the evidence obtained in the case including special knowledge in the field of real estate valuation provided by experts, the amount of compensation in the amount of 25,007,690 tenge was reasonably determined. This compensation amount, based on the size of the 0.0444 ha land plot, cadastral number No. 20-322-007-630 and the residential building with a total area of 55.20 sq.m., outbuildings, and green spaces located on it, corresponds to the market value that has developed on the territory of the Zhetysu district of Almaty, and is sufficient to purchase a similar land plot with residential housing built on it. The plaintiff's arguments about the unreliability of the established market price are not supported by reliable, admissible evidence.
Thus, the judicial board finds that the court reasonably satisfied the claim in part, with the determination of the price for a land plot with an area of 0.0444 hectares, cadastral No. 20-314-011-194, with an area of 0.0363 hectares. located on it is a residential building with a total area of 58.4 square meters.m. at the address: Almaty, Zhetysu district, S street...., 355, belonging to CH.I., KL.G., Zh.G., in the amount of 25,599,952 tenge. Taking into account the above, the board finds the arguments of the appeal unfounded and subject to dismissal, and the decision of the court of first instance is lawful and justified, 6 there are no grounds for its cancellation or amendment. Guided by Articles 424-426,431 of the CPC, 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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