Consideration of disputes arising from housing legal relations

According to article 25 of the Universal Declaration of Human Rights, housing is an essential component of a person's standard of living, which is necessary to maintain the health and well-being of himself and his family.

The inalienable right of everyone to housing is also enshrined in the International Covenant on Economic, Social and Cultural Rights (article 11).

At the same time, as follows from paragraph 1 of article 12 of the International Covenant on Civil and Cultural Rights, the right to housing must be realized subject to freedom of choice of place of residence. The need to respect human habitation is also stated in article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms.

Taking into account the provisions of international legal acts, Article 25 of the Constitution of the Republic of Kazakhstan establishes the creation of conditions for providing citizens with housing. In accordance with Article 87 of the Law of the Republic of Kazakhstan "On Housing Relations" dated 04/16/1997 No. 94, recognition of a person who has lost the right to use a dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock due to absence in excess of those established in art. 85 and 86 of this Law of the time limits are made at the request of the landlord or the tenant (sub-tenant) remaining to reside in this premises, or members (former members) of his family.

According to Part 1 of Article 85 of the above-mentioned law, in the temporary absence of the tenant (sub-tenant) or his family members, they retain a dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock for six months.

Thus, the basis for filing claims for recognition of a person who has lost the right to use a dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock due to absence for more than six months is made at the request of the landlord or the tenant (sub-tenant) remaining in this room, or members (former members) of his family.

Jurisdiction and jurisdiction.

The protection of violated housing rights is carried out by a court of general jurisdiction in accordance with the jurisdiction of cases established by the Civil Procedure Code of the Republic of Kazakhstan.

According to paragraph 1 of Article 33 of the CPC RK, claims for rights to land plots, buildings, premises, structures, and other objects firmly connected with land (real estate), and for the release of property from seizure are filed at the location of these objects or seized property. In applying this provision of the law, judges do not have any difficulties in delineating the jurisdiction of the dispute.

The list of participants in housing relations is defined by parts 1 and 2 of Article 9 of the Law of the Republic of Kazakhstan "On Housing Relations". According to the above-mentioned provision of the law, foreign legal entities and foreigners in the Republic of Kazakhstan enjoy the rights and duties in housing relations on an equal basis with legal entities and citizens of the Republic of Kazakhstan, unless otherwise established by legislative acts of the Republic of Kazakhstan.

Stateless persons permanently residing in the Republic of Kazakhstan enjoy the rights and duties in housing relations on an equal basis with citizens of the Republic of Kazakhstan.

For example, the decision of the Almaty District Court of Astana dated 16.01.2015 for No. 2-712 satisfied the claim of Kazbayeva N. to Kazbaev K. on recognition of the right to use housing from the state housing stock as lost.

The basis for filing a lawsuit is that the plaintiff's former spouse Kazbaev K. has not lived in the specified housing for more than six months, she has married another person. The inclusion of the defendant in the employment contract prevents the renegotiation of the employment contract with the inclusion of her spouse in it.

The court found that on 05/04/2014, between Kazbaeva N. and the State Institution "Astana Housing Administration", on the basis of the decree of the Akimat of Astana No. 182-62 dated 01/20/2014, an agreement No. 66 for the lease (lease) of a dwelling equated to an office was concluded, according to which the tenant and his family members: Kazbayeva K.'s spouse and Kazbayeva's daughter A. was provided with a two-room apartment for rent at the address: Astana, md. South-East, Ile str., 30/1, sq.159. In fact, the apartment was transferred to the use of Kazbaeva N. before the conclusion of the contract under the act of 09.01.2014.

In June 2014, the marriage between the plaintiff and Kazbaev K. was dissolved, which was confirmed by a certificate of divorce.

At the same time, the statement of claim states, and this has not been refuted by the defendant's representative, that in fact the marital relationship with Kazbaev K. has been terminated since February 2014.

From that time on, the plaintiff and her daughter moved into the apartment themselves, and K. Kazbaev. He stayed in another apartment. Meanwhile, on 06.10.2014, the plaintiff Kazbayeva N. married Elemanov A. and since that time has been living in the specified apartment with family members: daughter Kazbayeva A. and spouse Elemanov A.

In accordance with Article 87 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), recognition of a person who has lost the right to use a dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock due to absence beyond the time limits set in Articles 85 and 86 of the Law is carried out at the request of the landlord or the remaining resident in this premises the employer (sub-employer), or members (former members) of his family.

Article 85 of the Law provides that in the temporary absence of an employer (sub-tenant) or members of his family, they retain a dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock for six months.

If the employer (sub-tenant) or members of his family have been absent for valid reasons for more than six months, this period is extended accordingly at the request of the absent person. The court found that the defendant Kazbaev K. had never lived in a rented apartment, i.e. he had been absent for more than 6 months.

The reason for the absence of the tenant is not valid, since he was not interested in using the apartment. The Law establishes an exhaustive list of cases in which citizens retain housing from the State housing stock or housing rented by a local executive body from a private housing stock.

In connection with the above, due to the absence of K. Kazbaev in the apartment beyond the time limit prescribed by law, as well as taking into account the recognition of the claim by the defendant, the court reasonably satisfied the claim for recognition of the defendant as having lost the right to use the apartment.

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