Contesting the ownership of a land plot and land use
According to article 22 of the Land Code of the Republic of Kazakhstan, ownership of a land plot arises by:
1) granting ownership rights;
2) transfer of ownership rights;
3) transfer of ownership rights by way of universal succession (inheritance, reorganization of a legal entity).
The provision, transfer and transfer of ownership rights must be carried out taking into account the intended purpose of the land plot. Ownership of a land plot arises on the basis of:
1) acts of state bodies;
2) civil law transactions;
3) other grounds provided for by the legislation of the Republic of Kazakhstan.
In accordance with article 31 of the Land Code of the Republic of Kazakhstan, the right of land use arises by:
1) granting the right of land use;
2) transfer of land use rights;
3) transfer of the right of land use in the order of universal succession (inheritance, reorganization of a legal entity).
The granting, transfer and transfer of land use rights should be carried out taking into account the intended purpose of the land plot.
The right of land use arises on the basis of:
1) acts of state bodies;
2) civil law transactions;
3) other grounds provided for by the legislation of the Republic of Kazakhstan.
By virtue of clauses 1, 2 of art.188 of the Civil Code, the right of ownership is the right of a subject recognized and protected by legislative acts to own, use and dispose of property belonging to him at his discretion. The owner has the right to own, use and dispose of his property. The right of ownership is a legally secured opportunity to exercise actual ownership of property. The right of use is a legally secured opportunity to extract useful natural properties from property, as well as to receive benefits from it. The right of disposal is a legally secured opportunity to determine the legal fate of property.
264 of the Civil Code, the owner has the right to demand the elimination of any violations of his right, even if these violations were not connected with the deprivation of possession.
According to paragraph 1 of Article 25 of the Land Code of the Republic of Kazakhstan, the owner of the land plot exercises the rights of ownership, use and disposal of the land plot at his discretion without obtaining any permits from government agencies.
In accordance with Articles 164-1 of the Land Code of the Republic of Kazakhstan, the owner of a land plot or a land user has the right to claim his land plot from someone else's illegal possession.
The reclamation of an unauthorized occupied land plot from the state-owned lands that have not been granted for land use is carried out by local executive bodies at the location of the land plot. The illegal owner is obliged to vacate the illegally occupied land plot within thirty calendar days from the date of application of the penalties provided for by the legislation of the Republic of Kazakhstan on administrative offenses, and to demolish the building erected (being erected) on such a site, independently or at his own expense, except in cases provided for by the civil legislation of the Republic of Kazakhstan. Disputes related to the non-fulfillment by the illegal owner of the obligation to vacate an arbitrarily occupied land plot and demolish a building erected (under construction) on such a plot are resolved in court.
Title document for a land plot is a document confirming the occurrence of legal facts (legal structures) on the basis of which rights to a land plot arise, change or terminate, including contracts, court decisions, legal acts of executive bodies, certificate of inheritance, transfer act or separation balance sheet during the reorganization of non-governmental legal entities, who own a land plot by right of ownership or who have bought the right of temporary paid land use (lease).
An identification document for a land plot is a document containing the identification characteristics of a land plot necessary for the purposes of maintaining land, legal and urban planning cadastres.
Claims for rights to land plots must be submitted to the court in accordance with part 1 of Article 33 of the CPC at their location.
The right of ownership of a land plot and the right of land use are protected in accordance with the procedure provided for by the Civil Code and other legislative acts. When resolving disputes on the return and reclamation of land from illegal possession of others, and on the removal of obstacles to the use of land, the courts should bear in mind that the statement of claim must be accompanied by title documents for the claimed land in the name of the plaintiff.
As part of the preparation of a case for trial, the court should establish the nature of the relationship between the parties, the causes and time of the disputed legal relationship, and invite the parties to provide title and identification documents for disputed land plots.
Most of the disputes are cases on claims for the release of land plots. The ground for filing a claim for the release of a land plot is the unauthorized occupation of a land plot by citizens and legal entities without appropriate permits.
To properly resolve this issue, it is necessary to distinguish between the requirements for the seizure of a land plot and the release of an arbitrarily occupied land plot.
According to Articles 92, 93, 97 of the Land Code, a land plot may be seized from a land user or from an owner who does not use the land plot for its intended purpose or uses it in violation of the law. The law also provides for a specific procedure for the seizure of a land plot – in court at the request of the territorial authority for land management. At the same time, the law provides for a preliminary procedure for the pre-trial settlement of the dispute.
When considering claims for the return of illegally seized lands and the demolition of unauthorized buildings, the courts must take into account that an unauthorized building is an apartment building, other structure, structure or other immovable property erected on land not allocated for these purposes, in accordance with the procedure established by law, as well as erected without obtaining the necessary permits. An unauthorized building is subject to demolition by the person who carried it out at his expense, with the exception of the cases provided for in paragraphs 3 and 4 of Article 244 of the Civil Code, the right of ownership to an unauthorized building may be recognized by a court for the person who carried out the construction, provided that this land plot is provided to this person in accordance with the established procedure for the placement of the erected building.
Disputes arising from the fact that title documents have been issued to different persons for the same land plot, as well as disputes between land owners due to the imposition of plots, violation of boundaries.
The cases were initiated on the basis of claims by the owners of land plots for the removal of obstacles to the use of their land plots, in the process of their distribution and redistribution, land management, the exercise of the right to use the provided land and the right of private ownership of land, the recognition of illegal decisions (actions) of a state body, a local government body, invalid state acts on ownership and the right to land use. 7
The main reason for disputes is the violation of the norms of land legislation when granting or terminating ownership and land use rights, the illegality of decisions of akims and resolutions of akimats on granting citizens rights to land plots, defining their boundaries, the illegality of actions or inaction of authorized state bodies in the field of land relations.
The reason for disputes over land boundaries is that many land plots are not registered at all or are registered without defining their boundaries.
In the process of carrying out cadastral work to clarify the location of the boundaries of a land plot (for example, in connection with the upcoming alienation of a house or land plot), disputes arise over the establishment of boundaries.
At the same time, the fact that the areas of land owned by the parties do not match with the title documents for them does not always indicate that the defendant occupies part of the plaintiff's land, since such a discrepancy may be caused by other reasons: occupation of the plaintiff's land by another adjacent landowner (user), or placement on public lands).
When resolving a dispute over the ownership of the same land plot by two or more owners (land users), as well as violations of the boundaries of adjacent land plots, the courts should take into account the requirements established by Article 43 of the Land Code. The use of a land plot before its boundaries are established in kind (on the ground) and the issuance by the authorized land management body of documents certifying the right to the land plot is not allowed, unless otherwise provided for in the decision of the executive body on the disposal of the land plot. Failure to comply with these requirements qualifies as unauthorized occupation of a land plot. Transactions with land plots for which no legal documents have been issued are not allowed.
Lawsuits for the release of illegally occupied land plots
Thus, by the decision of the Taldykorgan City Court of the Almaty region dated 04/17/2015, it was decided to claim from the illegal possession of the defendants Nurgalpenov M., Nurgalpenova N. a land plot of 0.0540hectares located at Taldykorgan, Shaikorgan residential complex, 9, plot 49 in favor of Bostekbaev G.O.
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