Compulsory alienation (purchase) of land and other immovable property for state needs

In the proceedings, there was a civil case No. 7585-20-00-2/..... dated 11/27/2020 on the claim of the Akimat of Almaty represented by a representative of the KSU "Department of Land Relations of Almaty", (hereinafter - the Plaintiff)  to the defendant gr. ...... Lyudmila Viktorovna (hereinafter referred to as the Defendant) about the compulsory alienation (purchase) of land and other immovable property for state needs.   According to which the Plaintiff motivates his claims that, In order to implement the General Plan of Almaty, approved by the Decree of the Government of the Republic of Kazakhstan dated December 19, 2002, No. 1330, on the basis of resolutions of the Akimat of Almaty. Almaty "On the beginning of compulsory alienation of land plots or other immovable property in connection with the seizure of land for State needs" dated 02/28/2019 No. 1/1-284 and "On Amendments to the Resolution of the Akimat of Almaty dated 02/28/2019. № 1/1-....... "On the beginning of the compulsory alienation of land plots or other immovable property in connection with the seizure of land for state needs" dated 15.01.2020 No. 1/1-28 in accordance with subparagraph 4 of paragraph 2 of art. 84 of the Land Code of the Republic of Kazakhstan, for the construction of an electric transport facility, the share of the cadastral land belonging to the defendant is subject to compulsory alienation, including through redemption, for state needs. №20-322-007-....... with a total area of 0.07 ha (total land area of 0.1139 ha) and part of a residential building with a total area of 38.4 sq.m. at the address: Almaty, Nauryzbay district, mkr.....-2, ul. .........., D. 100/1. Pursuant to the above-mentioned resolution, in accordance with the legislation, on 11.03.2019, the defendant received a notification of the impending alienation of the land plot for state needs, as evidenced by the signature in the notification. We do not agree with the Plaintiff's arguments, since the Defendant did not officially receive a Notification from the Plaintiff by mail and/or on purpose, however, the entire district knew about the demolition of the residential premises of Kalkaman-2, from where we became aware. In addition, the Plaintiff argues that due to the owner's refusal of access to appraisers of Kazzholingining LLP to inspect real estate located on the land plot in order to determine the technical condition of land improvements (interior and exterior finishes), their wear and other physical characteristics necessary for the calculation, the market The cost of the buildings has not been determined due to the impossibility. According to the real estate valuation report of Kazzholingining LLP dated 05.10.2020, the market value of the land plot is 21 289 457 tenge.

Compulsory alienation (purchase) of land and other immovable property for state needs

We consider the Plaintiff's arguments to be unsound, since the Defendant did not in any way interfere with the access of appraisers, since the assessment of 05.10.2020 was already the second assessment conducted by the Plaintiff. Moreover, surprisingly, on 05.10.2020, the Appraisers fully examined the object of assessment and photographed it.  In addition, the Plaintiff's appraisers, as practice shows, if the Defendant did not provide access to the property, they had to draw up an Act with the participation of witnesses or a video recording of the denial of access to the property. After examining the evaluation object of the evaluation company, the Defendant did not receive a notification or notification of the evaluation results from the Plaintiff, respectively, the Defendant's rights were violated under paragraph 1 of Article 2 of the Civil Code of the Republic of Kazakhstan, which stipulates that civil legislation is based on the recognition of equality of participants in the relations regulated by it, inviolability of property. paragraph 3.4 of art. 67 of the Law of the Republic of Kazakhstan "On State Property" stipulates that the market value of the alienated land or other immovable property in connection with the seizure of land for state needs is determined by the appraiser on the date of the assessment. 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 the property and losses in full caused to the owner as a result of the forced alienation of the land for state needs. The Plaintiff also argues that the Defendant was offered compensation for the land and house that were forcibly alienated for state needs, but so far no purchase agreement has been concluded for state needs, and no agreement on the purchase price has been reached, which was the basis for going to court. Dear court, we consider the above arguments to be unsound, since the Defendant did not receive an Assessment Report, did not receive a contract for the purchase of land and houses. Dear court, the Defendant planned her future by investing considerable funds in real estate, carried out landscaping of the site, and also financed the development of the site's infrastructure throughout the time, and the Plaintiff's actions caused irreparable damage to the moral situation in the family. We do not agree with the assessment of the appraisal companies of Kazzholingining LLP, since in the assessment No. A-2020/57 dated October 05, 2020, where the market value of the land was 21 289 457 tenge, the market value of the land without real estate was only investigated. Accordingly, the valuation company has determined the market value of the land incorrectly and unreliably, since in addition to the land there is a residential building with a total area of 45.3 square meters, and it is also unfairly underestimated, since each house and land plot located in this area is individual and requires a detailed approach. Thus, having studied the provided copy of the report on the assessment of the alienated property, we came to the following conclusion.

In accordance with paragraph 2 of Article 67 of the Law of the Republic of Kazakhstan "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. According to the Law of the Republic of Kazakhstan "On Valuation Activities", the market value is the most likely price at which a given object can be disposed of on the basis of a transaction in a competitive environment. In this case, the actual market price can be determined only if one of the parties to the transaction is not obligated to alienate the valuation object, and the other party is not obligated to acquire, and when there was no coercion to make a transaction with respect to the parties to the transaction from anyone. According to the Order of the Minister of Finance of the Republic of Kazakhstan dated May 5, 2018 No. 519 on the approval of Evaluation Standards, the comparative approach provides for the following sequence of evaluation procedures: 1) collecting and analyzing information on the sale or offer of similar real estate and determining the objects of comparison; 2) choosing a method for calculating the value of the object of evaluation, taking into account the volume and reliability of the available information; 3) comparing the object of evaluation with the objects of comparison, followed by adjusting the sale price or the offer price of the objects of comparison; 4) determining the value of the valuation object by taking into account the amount of corrective adjustments to the value of the comparison objects; 5) agreeing on the calculation results obtained. At the same time, in the analyzed report, as part of the cost calculation using the comparative approach, there is no justification for the applied adjustments (amendments) with the objects of comparison.  In addition, in accordance with the requirements of the Valuation Standard, the report does not provide a detailed calculation of the value of the object, limiting itself to the data indicated in the calculation table of the report, which is a violation of the requirements of the valuation standard. When deducing the total cost, there is no justification for giving weight coefficients to the results obtained by the comparative method, and the hierarchy analysis method recommended in the methodological literature has not been used.

According to the Valuation Standard, it is indicated that the amount of accumulated depreciation of real estate is equal to the totality of physical, functional and external (economic) depreciation. When deducing the total cost, the appraiser did not specify the percentage of depreciation of the premises, since when evaluating property with physical wear and tear, the appraiser is obliged to take note of the specified coefficient. In the table, the Appraiser indicates how he selected the land plots for the evaluation object in that area, the selected analogues are not correct, as the selected analogues do not take into account the house and green spaces with perennial trees for the evaluation object. Dear court, the market is very large and there are dozens of offers for the sale of houses. Kalkaman-2 microdistrict, Nauryzbai district belongs to the category of good districts of Almaty as there are all communications, and much more for a comfortable and safe stay. But unfortunately, when selecting similar land plots without houses, the appraiser treated them formally, as he selected Atypical land plots without houses. In connection with the above, we believe that in this case there is a low-quality and biased assessment. The main principles of evaluation activities are objectivity and reliability, which is not respected during the evaluation. These violations affect the interests of the Defendant, since the valuation is carried out on the property by right of ownership for alienation in favor of the state in terms of market prices. In accordance with Article 257 of the Civil Code, upon termination of ownership, property is assessed based on its market value. In this case, we believe that a poor-quality and biased assessment affects our interests. In this regard, we have submitted an alternative report on the valuation of real estate for No. 002 dated January 09, 2021, carried out by Bakyt Assessment Group LLP, which determines the market value of real estate in the amount of 104,726,450 tenge, we consider it reliable and fair, the market value indicated in it corresponds to the real value of the alienated real estate. According to Article 255, the Civil Code of the Republic of Kazakhstan "Termination of ownership of immovable property in connection with the seizure of land and other natural resources" provides for: Termination of ownership of real estate in connection with a decision of a government agency not directly aimed at seizing property from the owner, including a decision to seize the land on which the owned the owner of a house, other buildings, structures or plantings is allowed only in cases and in accordance with the procedure established by legislative acts., with the presentation of equivalent property to the owner and compensation for other losses incurred or compensation in full for losses caused by the termination of ownership rights. If the owner does not agree with the decision entailing the termination of the ownership right, it cannot be carried out until the dispute is resolved in court. When considering a dispute, all issues of compensation to the owner for damages are also resolved. The assessment report No. A-2020/57 dated October 05, 2020, produced by the appraisal company Kazzholingining LLP, where the final value of a land plot without a house in the amount of 21,289,457 tenge was determined, certainly shows its underestimation in determining the estimated value of the alienated property.

Compulsory alienation (purchase) of land and other immovable property for state needs

    By virtue of the above arguments, we consider it possible to adopt the Assessment Report No. 002 dated January 09, 2021, carried out by Bakyt Assessment Group LLP, which defines the market value of the alienated property in the amount of 104,726,450 tenge, as the basis for establishing the market value of the alienated property located at the address Almaty, Nauryzbay district, MKR. ......-2, St. ..........., D. 100/1, and the amount indicated in the Assessment Report of Bakyt Assessment Group LLP in the amount of 104,726,450 tenge, which is a more realistic market value, would be fair to take as the current market value for the alienated property. Article 6. "Interpretation of the norms of civil legislation" stipulates that the norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression. If there are possible different understandings of the words used in the text of legislative norms, preference is given to an understanding that corresponds to the provisions of the Constitution of the Republic of Kazakhstan and the basic principles of civil legislation set out in this chapter, primarily in its Article 2. 2. When clarifying the exact meaning of the norm of civil legislation, it is necessary to take into account the historical conditions under which it was put into effect., and its interpretation in judicial practice, if this does not violate the requirements set out in paragraph 1 of this article. Article 68 of the CPC RK. "Evaluation of evidence" states that each piece of evidence is subject to evaluation based on relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case. In this civil case, we observe that the evidence provided is unfounded. Article 72 of the CPC RK. The "Duty of Proof" stipulates that each party must prove the circumstances to which it refers as the basis of its claims – which is not observed in the statements of claim. Article 73 of the CPC RK. "Presentation of evidence", evidence is presented by the parties and other persons involved in the case to the court of first instance at the stage of preparing the case for trial.      In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings. The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law. Based on the above and guided by art. 166, 46 of the CPC RK, Asked the Court: Claims of the Akimat of Almaty represented by a representative of the KSU "Department of Land Relations of Almaty" to the Defendant ....... Lyudmila ........... on compulsory alienation (purchase) of a land plot and other immovable property for to partially satisfy state needs; In terms of determining the amount of compensation for a land plot and a residential building located at the address: Almaty, Nauryzbay district, MD. .......-2, St. ............, D. 100/1, in the amount of KZT 21,289,457 for subsequent payment to the Defendant – to refuse satisfaction; To determine the amount of compensation for the land plot and residential building forcibly alienated for state needs at the address: Almaty, Nauryzbay district, MKR. ............-2, St.............., 100/1, according to the report on the valuation of real estate for No. 002 dated January 09, 2021, carried out by Bakyt Assessment Group LLP, which determined the market value of the alienated property in the amount of 104,726,450 tenge for subsequent payment to the Defendant. On May 04, 2021, the Nauryzbay District Court of Almaty, consisting of: the presiding judge, D.K. Ospanova, On the compulsory alienation for state needs of a land plot beyond the cadastral №20-322-007-......... with an area of 0.07 ha /total land area of 0.1139ha/ and a residential building of 38.4 m2 located at: Almaty, Nauryzbay district, Kalkaman-2 mkr., B........, 100/1 with payment of compensation 2. About the eviction ........... L.V., with all the residents. Guided by Articles 223-226 of the CPC, the court DECIDED: The claim of the Akimat of Almaty to ........... Lyudmila ............. on compulsory alienation (purchase) of a land plot and other immovable property for state needs and eviction – partially satisfy.  To make compulsory alienation for state needs of a land plot, cadastral No. 20-322-007-... with an area of 0.07 ha /total land area of 0.1139 ha/ and a residential building of 38.4 m2 located at the address: Almaty, Nauryzbay district, mkr.....-2, B street.........., D.100/1 owned ........ Lyudmila ............... Determine the price for a land plot and an apartment building located at the address: Almaty, Nauryzbay district, MD...........-2, B street............, D.100/1 in the amount of 35 572 959 (thirty five million five hundred seventy two thousand nine hundred fifty nine) tenge, for subsequent payment ......... Lyudmila ..........

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