Compulsory alienation (purchase) of a land plot for state needs
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To the Almaty district court of Nur-Sultan to Judge Asanova S.S.
010000, Nur-Sultan, Abai Avenue, 36. 8 717 271 06 35 010201@ sud.kz
from the Defendant: A.A.E. IIN....
Proxy Representative: Law and Law Law Firm
BIN 201240021767 Almaty, 79/71 Abylai Khan ave., office 304
info@zakonpravo.kz / www.zakonpravo.kz +7 708 578 57 58; +7 727 971 78 58.
Plaintiff: Office of Akim of Nur-Sultan
Representative: State Institution "Housing and Housing Inspection Department of Nur-Sultan"
BIN .... Nur Sultan, S. S. street...., 30 +7 701 .....
Response to the statement of claim
on compulsory alienation (purchase) of a land plot for state needs
There is a civil case in your proceedings No. 7111-22-00-2/214 dated 01/23/2022 on the claim of the Akimat of the city of Nur-Sultan against A.A.E. on the compulsory alienation of a land plot for state needs with payment of compensation. The plaintiff motivates his claims that according to the decree of the Akimat of Nur-Sultan "On the compulsory alienation (purchase) of land for state needs" dated March 11, 2020 No. 510-547 and "On Amendments to certain Resolutions of the Akimat of Nur-Sultan" No.510-2502 dated July 22, 2021, land plots with a total area of 1.3626 ha – plot 1, and 0.6750 ha – plot 2, located at the address: Nur Sultan city, Almaty district, Mynzhyldyk Alley, are subject to compulsory alienation (purchase) for state needs. In accordance with paragraph 3, art. 67 of the Law of the Republic of Kazakhstan "On State Property", the market value of the alienated land plot 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, taking into account the provisions of paragraph 1 of Article 208 of this Law. The valuation of a land plot or other immovable property alienated for state needs, in connection with the seizure of a land plot for state needs, is carried out in accordance with the valuation standard approved by the authorized body in the field of valuation activities.
Earlier, by order of the Plaintiff, Asia Consulting LLP, an assessment of the land plot was carried out at the address: Nur-Sultan, Almaty district, intersection of streets No. 23-15 and Zh. Nazhvedenova. According to the valuation report No.00185/NUR dated 11/15/2021, carried out by the valuation company Asia Consulting LLP, the market value of real estate amounted to 126,704,158 tenge. Also, by order of the Plaintiff, the appraisal company Asia Consulting LLP made estimates No. 00185/1/NUR and No.00185/2/NUR dated 11/15/2021 for land plots owned by the Defendant on the right of temporary land use (lease) with an area of 0.0464 ha and 0.1741 ha, where the market value for a land plot of 0.0464 ha was 314,764 tenge, and for a land plot with an area of 0.1741 hectares, the amount was 1,181,043 tenge, while the rent for leased land plots was paid until the end of 2024 in the amount of 360,709 tenge. In P. 8, Chapter 2 of the Order of the Minister of Finance of the Republic of Kazakhstan dated May 5, 2018 No. 519 "On Approval of Valuation Standards", it is stipulated that the following sequence of actions is used to determine the value of a real estate object by comparative analysis: 1) market research and collection of information on transactions or offers for the purchase or sale of objects similar to the evaluated object; 2) verification of information for reliability, accuracy and compliance with market data; 3) selection of at least three units of comparison typical for the market of the evaluated object; 4) calculation of correction coefficients by comparing comparable objects (analogous objects) with the real estate being evaluated (the object of evaluation) by comparison elements (price-forming factors) using comparison units; 5) making adjustments to the price of each compared object relative to the evaluated object for each element of comparison; 6) agreeing on adjusted prices of comparable objects to obtain a single the indicator (value) of the market value of the assessed object. On November 12, 2021, the land plots were inspected by appraiser Usmanov Sh.B. in the presence of A.E.A. He took a photo (appendix No. 2 to report No.00185/NUR), the photos show that the territory has been paved for open parking for cars, i.e. in fact private land plots are already being used by the Akimat (for the information of the court, I inform you that this happened in June 2020). The report dated November 15, 2021, was signed by two appraisers, Sh.B. Usmanov and A.A. Baydauletov. This Defendant's land plot, purchased back in 2004, is being withdrawn for state needs for the third time, and was transferred to private ownership by a resolution of the Akimat of Astana on July 29, 2013. In the analyzed report, as part of the cost calculation using a 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, the appraisers limited themselves 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 of objects, there is no justification for giving weight coefficients to the results obtained by the comparative method, while the hierarchy analysis method recommended in the methodological literature is not used.
The main comments to the report No.00185/NUR dated 11/15/2021, carried out by appraisers of Asia Consulting LLP, are: Page 3. Section 1 "General information about the report".
There is no definition of the base and type of fixed cost.
There is a list of appraisers who did not participate in the calculations and the preparation of the assessment report.
Page 5-8.
The Law of the Republic of Kazakhstan "On Evaluation Activities in the Republic of Kazakhstan" is indicated without changes and additions as of the date of the assessment.
The legislative documents that are not related to this report are indicated, while the necessary literature on the assessment of the land plot is missing.
The terminology used indicates 15 types of value with their description, whereas the report uses only the market value.
The quality certificate – paragraph 1.5. – does not specify the main type for the valuation of real estate, according to the standard "Valuation of real estate" (Appendix 2 to the order of the Minister of Finance of the Republic of Kazakhstan dated May 5, 2018 No. 519).
Page 8. Section 2 "General information and description of the evaluation object".
Subsections are not highlighted (according to section 2 "Requirements for the form and content of Report No. 501 dated May 3, 2018).
Page 9. Section 3 "Calculation part of the report".
The standard "Valuation of real Estate" – Chapter 2, Article 9 specifies 6 methods of land valuation, namely comparative analysis, development, allocation, extraction, residual value, and capitalization of land rent. However, appraisers use only one method – comparative analysis. There is no description and justification for not using other methods, which is a gross methodological error.
Appraisers claim that the purchase and sale market, as of the valuation date, in Nur-Sultan for land plots amounted to 76 offers, but there were no offers for plots in the immediate vicinity of the assessed object. The check showed that the evaluators give false information and mislead the user. There were similar proposals (6-7) in information sources, which is a gross methodological violation.
The table "engineering support" indicates the absence of all major communications on the site (electricity, heating, water and gas supply, sewerage). At the same time, it is not indicated that these communications take place nearby, that is, in close proximity, and there are technical conditions agreed with the relevant services for their connection.
There is no comparability test, which is also a gross methodological violation, according to the standard "Valuation of Real Estate" (Appendix 2 to the Order of the Minister of Finance of the Republic of Kazakhstan dated May 5, 2018 No. 519), Article 2, paragraph 9.
The analogues differ significantly from the assessed site in terms of the main feature – location. At the same time, the appraisers did not indicate that the city of Nur-Sultan is divided into zones, and the assessed site has a unique location (zoning with correction factors was approved by the decision of the Maslikhat of Nur-Sultan No. 523/75-4 dated February 27, 2018), namely– next to the Palace of Independence.
The adjustments used (9 in total) are briefly described, but there are no justifications or calculations of their size.
Page 16. Calculation table "Determination of the market value of a land plot by comparative analysis".
A bid adjustment of 15% is overstated, while land plots in the assessed area are in high demand.
The location adjustment is indicated at 0%, which is a gross violation, since the analogues are extremely different from the assessed site in the direction of their significant deterioration.
Adjustments to the size of the land plot in the amount of -10%, -10%, and -5% do not have a clear and objective justification.
Thus, the report has serious and gross shortcomings both in the selection of analogues and in the calculation of the cost of the object. Page 18-22. Applications.
The provided electronic version of the report does not contain photographs of the valuation object and screenshots of analogues used in calculating the market value.
The address of one of the analogues does not match the specified ad on the Roof.kz website.
The provided electronic version of the report does not contain photographs of the valuation object and screenshots of analogues used in calculating the market value.
The address of one of the analogues does not match the specified ad on the Roof.kz website.
Moreover, all three analogues of land plots given by appraisers are not only inappropriate, but also unacceptable.:
The object is an analog of No. 1 with an area of 23 acres, actually has an area of 17 acres; it is leased from the Akimat of Nur-Sultan until 2024; it is located on the territory of the Botanical Garden - Bukhar Zhirau St., corner of Sauran St., i.e. it cannot be an analog of the land plot, which is located on the border of zone No. 1 in 200 meters from the Palace of Independence of the Republic of Kazakhstan and where the construction of a 4-storey building of a restaurant and wellness complex with a total area of about 10,000 square meters was to begin in April 2020. This plot of land is unique and today there is no better, more convenient and well-maintained plot in the whole city.
The facility is an analog of No. 2 with an area of 20 acres, which is true; it is leased from the Akimat of Nur-Sultan for a period of 5 years and is intended for parking, i.e. it is necessary to change its purpose; it is located in zone No. 11 on Ainakol Street, corner of Kumkent Street, three kilometers from the Defendant's sites, that is, this plot also cannot be an analogue of the main land plot.
The object is an analog of No. 3 with an area of 30 acres, in fact it turned out that the owner owns only four acres on the right of private ownership, whereas 26 acres is leased from the Akimat of Nur-Sultan; a pit was dug on the territory and piles were driven on a plot of 4 acres; the address of the object is Tauelsizdik 22a, located in the zone No. 7, is located 3.6 km away from the Defendant's plots, i.e. this plot cannot be compared with the main land plot.
Thus, all three land plots accepted by Asia Consulting LLP as analogous objects turned out to be fictitious during our inspection. Therefore, I consider that report No. 00185/NUR is not subject to further consideration by the court of the Almaty district of Nur-Sultan. The conclusion is an assessment of the market value of a 36.46-hectare land plot located at the address: Nur-Sultan, Almaty district, near the intersection of streets No. 23-15 and Zh. Najmedenova was carried out with numerous, including unreliable and gross violations in the selection of analogues and the methodology of calculations. As a result, the result obtained in the amount of 126,704,158 tenge cannot act as an evidence base. Thus, dear Court, we do not agree with the assessment report No. 00185/NUR dated 11/15/2021, as we believe that this report contains a poor-quality, unreliable and biased assessment. The main principles of evaluation activities are objectivity and reliability, which is not respected by appraisers when conducting an assessment. These violations affect the interests of the Defendant, since the valuation is carried out on property on the basis of private ownership and is withdrawn for state needs, i.e. we are talking about the forced termination of ownership and eviction.
In addition, in accordance with the requirements of the Valuation Standard, Report No. 00185/NUR dated 11/15/2021 does not provide a detailed calculation of the cost of the facility, i.e. appraisers limited themselves 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, while the hierarchy analysis method recommended in the methodological literature is not used. It is important to note that the land market in the city of Nur Sultan is very large and there are hundreds of offers for the sale of land plots. It is known that the Nur-Sultan Almaty district belongs to the category of elite districts of the capital for comfortable and safe living. But, unfortunately, without taking into account this objective fact, appraisers show a very low estimate when determining the market value of the alienated property. In connection with the above, the Defendant submitted an alternative assessment report No. 137/2021 dated 6.10.2021, of a land plot with an area of 0.3646 hectares, executed by IP Kalinin & Partners Valuation and Consulting Company, where the market value of the land plot was determined at 326,050,000 tenge. We consider it reliable and fair, and the market value indicated in it corresponds to the actual value of the alienated real estate. In accordance with paragraph 2 of art. 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. Dear Court, the Defendant's family had their own plans for this land plot, having invested heavily in this property, in addition, for a long time they financed the development of the site's infrastructure, so the Plaintiff's actions caused irreparable material damage to the family and affected their moral situation for almost two years.
It should also be noted that in order to verify the objectivity of the assessment report No. 137/2021 dated 6.10.2021, the Defendant applied to the Republican Chamber of Judicial Experts of the Republic of Kazakhstan with an application for a forensic examination. Subsequently, IP "Ekey Forensic Services" (specialist Omarov A.S.), having examined the alienated land plot, issued a forensic expert opinion No. 14-2022 dated January 24, 2022 and concluded that the market value of the land plot with an area of 0.3646 hectares, located at the address: Nur-Sultan, Almaty district, intersection streets No. 23-15 and Zh. As of the time of the study, Najvedenova amounts to 305,261,350 tenge, i.e. this amount is only 20 million tenge lower than the assessment report No. 137/2021 dated 6.10.2021, which confirmed the objectivity of this assessment. According to Article 255 of the Civil Code of the Republic of Kazakhstan, termination of ownership of real estate in connection with a decision of a state body not directly aimed at seizing property from the owner, including a decision to seize land on which the owner's house, other buildings, structures or plantings are located, 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. Due to the above arguments, we consider it possible to accept the assessment report No. 137/2021 dated 6.10.2021, carried out by IP Kalinin & Partners Valuation and Consulting Company, as a basis, where the market value of the land plot is determined at 326 050 000 tenge. This amount is a more realistic market value, so it would be fair to accept it as the current market value for the alienated property. In accordance with Article 8 of the Civil Code of the Republic of Kazakhstan, actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are prohibited. Article 68 of the CPC RK states that each evidence is subject to assessment, taking into account its relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case. However, in this civil case, we observe that the evidence provided to the Court is unfounded and unreliable.
Dear Court, we would also like to note that the Defendant, in order to clarify the marketing analysis on the offer prices for the purchase and sale of one hundred commercial land plots located at the address: Nur-Sultan, Almaty district, contacted the NGO "Kazakhstan Federation of Real Estate" (hereinafter – CFN) in writing. KFN unites more than 25 real estate firms and real estate agencies, and is an accredited member of FIABCI, the International Association of Participants in the Construction and Real Estate Services Market. On November 26, 2021, the CFN, in its response No. 003/26/11 to the Respondent, indicates that as a result of the study, the weighted average offer price per acre was set at 11,684,623 tenge, while the CFN provided a list of analogous objects for land plots. According to the calculations of the KFN, the market value of the Defendant's land plot with an area of 0.3646 hectares, located at the address: Nur-Sultan, Almaty district, is 426 021 354 tenge. Article 72 of the CPC RK stipulates that each party must prove the circumstances to which it refers on the basis of its claims, which is not observed in the Plaintiff's statement 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.
Адам құқықтарының жалпыға бірдей декларациясы (7, 8 және 10-баптар), азаматтық және саяси құқықтар туралы халықаралық пакт (14-бап) және адам құқықтары мен негізгі бостандықтарын қорғау туралы Конвенция (6-бап) Заң мен сот алдында әркімнің тең екендігін және олардың азаматтық құқықтары мен міндеттерін айқындау кезінде әркімнің өз құқықтары мен міндеттерін заңды негізде құрылған құзыретті, тәуелсіз және бейтарап соттың істі ақылға қонымды мерзімде әділ және жария талқылауы. Жоғарыда айтылғандардың негізінде және ҚР АК 255-бабын, ҚР АК 166 және 46-баптарын басшылыққа ала отырып,
Сотты Сұраймын:
Нұр-сұлтан қаласы әкімдігінің "Нұр-сұлтан қаласының тұрғын үй және тұрғын үй инспекциясы басқармасы" ММ өкілі атынан жауапкерге А.А. Е. жер учаскесін мемлекет мұқтажы үшін мәжбүрлеп иеліктен шығару (сатып алу) туралы талап – арыз талаптары ішінара қанағаттандырылсын. Бұл жалға алынған екі учаскеге қатысты, бұл ретте жауапкерге 360 709 теңге сомасында алдын ала төленген жалдау ақысын қайтару қажет.
Нұр-сұлтан қаласы, "Алматы" ауданы, №23-15 және Ж.Нәжімеденов көшелерінің қиылысы мекенжайында орналасқан, мемлекет мұқтажы үшін мәжбүрлеп иеліктен шығарылған, жеке меншіктегі жер учаскесі үшін өтемақы мөлшерін айқындау бөлігінде жауапкерге кейіннен төлеу үшін 126 704 158 теңге сомасында А. А. Е. – қанағаттандырудан бас тартылсын.
"Kalinin&Partners" бағалау-консалтингтік компаниясы "ЖК орындаған, 6.10.2021 жылғы №137/2021 бағалау туралы есепке сәйкес, Нұр-сұлтан қаласы, "Алматы" ауданы, №23-15 және Ж. Нәжімеденов көшелерінің қиылысы мекенжайында орналасқан, мемлекет мұқтажы үшін мәжбүрлеп иеліктен шығарылған жеке меншік жер учаскесі үшін жауапкерге өтемақы мөлшері айқындалсын. иеліктен шығарылатын жер учаскесінің құны жауапкерге кейіннен төлеу үшін 326 050 000 теңге мөлшерінде айқындалған А. А. Е.
Құрметпен, "Заң және құқық" ақ адвокаты Г. Т. Саржанов
Назар аударыңыз!
«Заң және Құқық» адвокаттық кеңсесі, бұл құжаттың жалпылама екендігіне және нақты сіздің жағдайыңыздың талаптарына сәйкес келмеуі мүмкіндігіне көңіл бөлуіңізді сұрайды. Біздің заңгерлер сіздің нақты жағдайыңызға сәйкес келетін кез келген құқықтық құжатты әзірлеп көмектесуге дайын.
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