Compulsory alienation (purchase) of land and other immovable property for state needs
The proceedings of the Nauryzbay District Court of Almaty considered the civil case No. 7585-19-00-2/.... dated 17.07.2019 on the claim of the KSU "Department of Land Relations of the city of Almaty" (hereinafter referred to as the Plaintiff) to the defendant, gr. USA (hereinafter referred to as the Defendant) on 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 the resolution of the Akimat. 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 28.02.2019 No. 1/1-284, in accordance with subparagraph 4 of paragraph 2 of Article 84 of the Land Code of the Republic of Kazakhstan, for the construction of an electric transport facility, compulsory alienation, including by way of redemption, for the land plot belonging to the defendant, cadastral No..... with an area of 0.0769 hectares and a residential building with an area of 339.5 sq.m. at the address: Almaty, Nauryzbay district, mkr. …..., house 2, sq.1. Pursuant to the above-mentioned resolution, in accordance with the legislation, on 05.03.2019, the defendant received a notification of the impending alienation of the land plot for state needs, as evidenced by the signature in the notification. 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 report on the assessment of the market value of real estate by Capital Assessment Group LLP dated 04/17/2019, the market value of the seized real estate is 109,252,714 tenge (including: 23,747,800 tenge – the market value of the land plot; 85,504,914 tenge – the market value of an apartment building). 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 applying to the court. Thus, he asks the court:
To make compulsory alienation for state needs of a land plot cadastral No..... with an area of 0.0769 hectares and a residential building with an area of 339.5 sq.m. at the address: Almaty, Nauryzbay district, md. …..., house 2, sq.1, owned by USA;
To determine the amount of compensation for a land plot and an apartment building forcibly alienated for state needs at the address: Almaty, Nauryzbay district, house 2, sq.1, in the amount of 109,252,714 tenge for subsequent payment of the moustache;
Forcibly terminate the ownership of the land plot and residential building at the address: Almaty, Nauryzbay district, mkr....., house 2, sq.1;
Evict the USAAND all cohabiting persons from the occupied land and residential building at the address: Almaty, Nauryzbay district, mkr....., house 2, sq.1.
We do not agree with the above arguments of the Plaintiff, since a civil law agreement was concluded in accordance with Articles 150-151 of the Civil Code of the Republic of Kazakhstan (Transactions made under the condition, the Form of the transaction), Pursuant to which the Defendant concluded on April 25, 2007, a contract for the sale of a house with a land plot and acquired an apartment building with LLP. with a plot of land located at the address: Almaty city, Nauryzbay district, microdistrict ......, house 2, apartment 1, Cadastral number ....., according to the Contract. The defendant planned her future by investing considerable funds in real estate, got into debt, carried out landscaping of the site, in addition, throughout the time she financed the development of the town's infrastructure through monthly payments for the maintenance of autonomous electric power, water, sewer networks, roads, and other common facilities of the cottage town. It is unclear what caused the sudden decision to demolish a house that had not previously been demolished in connection with the construction of the subway. Subsequent 05 March 2019 we received a Notice from the KSU Department of land for the city of Almaty and the Decision of Akim of Almaty No. 4/371-185 dated June 18, 2009 where it was given to us In order to implement the General plan of Almaty on the basis of resolution of the akimat of Almaty "On the beginning of the forced alienation of land or other immovable property in connection with the seizure of land for state needs" from 28.02.2019, No. 1/1-284, our land and placed it on the real property at the following address: Almaty, Nauryzbay district, microdistrict ....., 2, apartment 1, (.........) It is subject to compulsory alienation, including through foreclosure, for state needs, as well as the need to provide access to real estate for evaluation. On April 17, 2019, specialists of the Capital Assessment Group LLP Assessment Companies conducted a survey of a residential building and a land plot. At the end of May 2019, we received an assessment report No. F19-0120/ALM-32 dated April 17, 2019 from the KSU Department of Land Relations of Almaty, compiled by Capital Assessment Group LLP, where the market value of real estate owned by gr. US.A., in the form of: residential building, total area – 339.5 sq.m., with a land plot, total area - 0.760 Ha., cadastral number: 20:322:006:634. located in Almaty, Nauryzbay district, microdistrict ...., 2, apartment 1, amounted to 109,252,714 tenge. We do not agree with the assessment of the appraisal companies of Capital Assessment Group LLP, as the market value of real estate indicated in the report No. F19-0120/ALM-32 dated April 17, 2019 of the appraisal companies is incorrectly and unreliably determined, as well as unfairly underestimated, since each apartment located in this area is individual and it 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. 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. Special attention in this assessment report requires the following: - 3 – page report in Chapter 1.3. Information about the appraiser – there are no qualification characteristics, and the Appraiser has identified himself as an Expert appraiser, whereas today the Authorized bodies issue an appraiser's Certificate, in order to be an Expert it is necessary to pass qualification exams and obtain appropriate Certificates that advise in Assessment materials. - 4 – page in Chapter 1.5, The list of documents used by appraisers, the appraiser indicated the International Standards of Assessment, 2013 – not correct, whereas on the day of the assessment there were already International Standards of assessment, 2017., There is no list of assessment standards, manuals, textbooks and other materials related to assessment. - There are too many gaps in the assessment without dashes, which is a gross violation of the design of the Report. - 11 – page Chapter 3.2, the Cost Approach table was applied in the Justification "In the cost approach, the comparative unit method was applied using modern reference materials from CO-INVEST, aggregated indicators of the cost of construction of the UPSS" However, the Appraiser also incorrectly forgot to indicate that it is necessary to calculate and indicate the market value of the Land plot. - 24 - page in the table, the Appraiser indicates how, when evaluating the House, he selected analogues to the object of assessment in that area, the selected analogues are not correct, since the selected analogues are much inferior in area to the object of assessment, the analogues of houses by the years of construction are also incorrectly selected. Dear court, the market is very large and there are dozens of offers for the sale of houses. The residential district of Zhaily, Nauryzbai district belongs to the category of elite districts of Almaty as there are all communications, a security system (security, fencing, video surveillance, etc.), sports playgrounds, recreation areas and walks, and much more for a comfortable and safe stay. But, unfortunately, when selecting similar houses, the Appraiser treated them formally, as he selected Atypical houses that did not belong to residential cottage towns, but simply selected houses that did not belong to fenced, well-maintained cottage towns. - In the assessment, when determining the estimated value, there is no Test for the comparability of the Land plot also on page 27, the cost and comparative methods are calculated with coefficients of 0.50%, while the cost should be 30% and the Comparative 70%. 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 gr. CO. N., since the valuation is carried out on property by right of ownership for alienation in favor of the state in conditions of market prices. In accordance with Article 257 of the CPC, 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 had a RCD. Almaty has submitted an alternative report on the valuation of real estate for No. 85/2019 dated June 07, 2019, carried out by the Valuation Institute LLP, which determines the market value of real estate in the amount of 253,152,822 tenge, we consider it reliable and fair, the market value indicated in it corresponds to the real value of the alienated property. According to Article 255, the Civil Procedure 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 state body 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 rules of this article shall apply accordingly upon termination of ownership of immovable property in connection with the decision of the state body on the seizure of mining allotments, sections of the water area and other areas where the property is located.
We also sent a corresponding request to the NGO "Kazakhstan Federation of Real Estate", which is reputable not only in the Republic of Kazakhstan but also internationally in the field of sale and valuation of real estate for marketing analysis by specialists of the NGO Kazakhstan Federation of Real Estate (CFN). To which we received a reasoned response from the CFN as follows: "To your request dated 06.06.2019. The specialists of the Kazakhstan Federation of Real Estate (CFN) conducted a marketing analysis to date in the sector of individual residential buildings in the Nauryzbai district of the southern capital in the sector of cottage towns. As a result of the study, it was found that the average offer price for the purchase and sale of residential buildings with a total area of 250-340 sq.m., the size of a land plot of 7-15 acres, with outbuildings, is 744 900,00 - 955 000,00 tenge per 1 sq.m. Exchange rate (NBK) on 06/20/2019 $1 = 382.38 tenge. Total Average cost per 1 sq.m. = ($ 2 208+$ 2 574+$ 3 782+$ 2 452+$ 2421+$ 2 199)16-% 2 706 = rounded up 1,033,692.00 tenge". (For more information, see the report of the NGO CFN). Whereas the appraisal company "Valuation Institute" LLP, which determines the market value of the alienated property in the amount of 253,152,822 tenge, determines the average cost per 1 sq.m. in the amount of 750,899 tenge, which logically corresponds to the average cost of the alienated property. However, in the Assessment Report No.F19-0120/ALM-32 dated April 17, 2019, produced by the Capital Assessment Group LLP, where the average cost per 1 sq.m is determined. 307,671 tenge and the total value of 109,252,714 tenge 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. 85/2019 dated June 07, 2019, carried out by the Valuation Institute LLP, which determines the market value of the alienated property in the amount of 253,152,822 tenge, as the basis for establishing the market value of the alienated property located at the address of Almaty, Nauryzbay district, microdistrict ..., 2, apartment 1. And the amount indicated in the Valuation Report of the Valuation Institute LLP in the amount of 253,152,822 tenge, which is a more realistic market value, would be fair to take as the current market value for the alienated real estate. 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 Articles 166, 46 of the CPC RK, the Court was asked:
To partially satisfy the claims of the KSU "Department of Land Relations of the city of Almaty" against the city of US on the compulsory alienation (purchase) of land and other immovable property for state needs;
Regarding the determination of the amount of compensation for a land plot and an apartment building forcibly alienated for state needs at the address: Almaty, Nauryzbay district, house 2, sq.1, in the amount of 109,252,714 tenge for subsequent payment of the moustache – to refuse satisfaction;
To determine the amount of compensation for a land plot and an apartment building forcibly alienated for state needs at the address: Almaty, Nauryzbay district, 2, sq. 1, according to the real estate valuation report No. 85/2019 dated June 07, 2019, carried out by the Valuation Institute LLP, where the market value of real estate is determined in the amount of 253,152,822 tenge for the subsequent payment of the moustache
Forced alienation (purchase) of a land plot and other immovable property for state needs On 12/19/2019, the Nauryzbay District Court of Almaty considered in open court a civil case of forced alienation for state needs of a land plot and a residential building located on it. Since there are disagreements in the valuation documents provided by the parties, at the request of the parties, the court ordered a forensic commodity examination. According to expert opinion No. 6325 dated 11/27/2019. Institute of Forensic Examination Almaty of the Ministry of Justice of the Republic of Kazakhstan, the market value of a land plot with a total area of 0.0769hectares, cadastral No. 20-322-006-... and a residential building with a total area of 339.5 sq.m., outbuildings, green spaces, located at the address: Almaty, Nauryzbay district, mkr. ...., 2, sq.m.1, which is subject to alienation for state needs at the time of the study may amount to KZT 196,284,728 (one hundred ninety-six million two hundred eighty-four thousand seven hundred twenty-eight). Based on the above, taking into account the expert's opinion, as well as considering that the defendant received a notification of the upcoming compulsory purchase of a land plot with housing construction for public needs on 12.03.2019, and therefore the assessment reports submitted by the plaintiff and the defendant conducted on 17.04.2019 by Capital Assessment Group LLP and 07.06.2019 by Institute of Assessment LLP did not they are relevant, and when determining the price for the purchased property, the court takes into account expert opinion No. 6325 dated 11/27/2019. Institute of Forensic Examination Almaty of the Ministry of Justice of the Republic of Kazakhstan, from which it follows that the market value is KZT 196,284,728. Analyzing the expert opinion No. 6325 dated 11/27/2019, compiled by an expert from the Institute of Forensic Examination of Almaty, Ministry of Justice of the Republic of Kazakhstan, the court considers that the expert opinion of the Institute of Forensic Examination of Almaty, Ministry of Justice of the Republic of Kazakhstan are objective and justified. Thus, the court considers it fair to determine the market value of the alienated property in the amount of KZT 196,284,728. Since the court's decision was in favor of the plaintiff, the court considers it necessary to collect a state fee in the amount of 5,050 tenge from the defendant to the state revenue. 223-226 of the Civil Procedure Code of the Republic of Kazakhstan, the court DECIDED: Partially satisfy the claim of the Akimat of Almaty to Svetlana Anatolyevna Usacheva about the compulsory alienation of land and other immovable property for state needs.
Compulsory alienation (purchase) of land and other immovable property for state needs
To carry out compulsory alienation for state needs of the cadastral land plot No. 20-322-006-..., with an area of 0.0769 hectares and a residential building with an area of 339.5sq.m. located at the address: Almaty city, Nauryzbay district, mkr. ..., 2, sq.1 belonging to the United States. To determine the price for a land plot and an apartment building located at the address: Almaty city, Nauryzbay district, 2, sq.1 in the amount of 196,284,728 (one hundred ninety-six million two hundred eighty-four thousand seven hundred twenty-eight) tenge, for subsequent payment of the moustache. To forcibly terminate the ownership of the land plot and residential building located at the address: Almaty city, Nauryzbay district, mkr. ..., 2, sq. m.1. To evict the USAAND all cohabiting persons from the occupied land and residential building at the address: Almaty, Nauryzbay district, mkr. ..., 2, sq.1. Collect a state duty in the amount of 5,050 (five thousand fifty) tenge from the moustache to the state revenue. Thus, the amount of forced alienation in favor of the state increased from 109,252,714 tenge to 196,284,728 tenge.
Sincerely, The Law and Law Law Company
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