Demolition of an unauthorized building on an unauthorized occupied land plot without obtaining title documents
A claim for recognition of the right to unauthorized construction is considered in a claim procedure, since the interested person applies for the protection of a violated or disputed right or legitimate interest by resolving a dispute over the right.
Paragraph 11 of the regulatory decree "On certain issues of dispute resolution related to the protection of home Ownership" provides comprehensive explanations on this issue.
Thus, claims for recognition of the right to unauthorized construction are filed and considered by the courts in all cases in the claim proceedings.
When determining the jurisdiction of cases involving the application of the provisions of Article 244 of the Civil Code, the courts must take into account the subject matter of the parties to the dispute and the nature of the legal relationship in their entirety.
For example, the akim of Aktobe city and the State Institution "Department of Land Relations of Aktobe City" filed a lawsuit against S.R. for the demolition of an unauthorized building, citing a violation of land legislation, since the defendant, without obtaining title documents, arbitrarily occupied a land plot located at Aktobe, Brothers Zhubanov Street.
In this regard, they asked to oblige S.R. to demolish the annex to the store, which was arbitrarily erected on the city's lands. By the decision of the Aktobe City Court of July 15, 2021, the claim was satisfied, it was decided to oblige S.R. to dismantle within a month the extension to the store, erected on an arbitrarily occupied land plot.
It follows from the case materials that the claim is based on such evidence as: protocol No. 72 on an administrative offense drawn up against S.R. under Article 136 of the Administrative Code, receipts for payment of an administrative fine by the defendant, a land survey report drawn up by the State Institution "Department of Architecture and Urban Planning of Aktobe".
It follows from the act that the fact of unauthorized construction of an extension on the city's lands without appropriate permits has been established. The verification of the defendant S.R.'s activities was carried out in order to prevent and eliminate an immediate threat to human health and life.
However, based on the case file, the defendant was not involved under Article 319 of the Administrative Code, which provides for administrative liability for the illegal construction of industrial, residential, economic, hydraulic (water management) or household facilities without the appropriate right to land. The sanction of this article provides for an additional penalty in the form of demolition of an unauthorized or under construction building.
The claim was satisfied by the court only on the basis of the defendant's recognition of the stated claim with reference to Article 171 of the CPC, paragraph 10 of Article 43 of the Land Code, while the issue of unauthorized construction of the building based on Article 244 of the Civil Code, as well as the status of the defendant, was not discussed by the court.
Meanwhile, the court's conclusions were hasty and led to an incorrect decision, since, as follows from the defendant's appeal, which was not accepted by the court and returned due to missing the deadline for appealing the judicial act, S.R., being the owner of a store to which an unauthorized building was attached, is, accordingly, an individual entrepreneur.
Consequently, the claim was to be considered in the specialized interdistrict economic court of Aktobe region, thus, the jurisdiction in this case was violated by the Aktobe city court. In addition, when issuing an order to the defendant to eliminate violations No. 212 dated December 24, 2020, which was attached to the case file, the authorized body referred to article 152-1 of the Entrepreneurial Code of the Republic of Kazakhstan, the provisions of which do not apply to individuals.
The circle of persons involved in the case.
Claims for recognition of ownership of an unauthorized building are considered by the courts in the order of claim proceedings and submitted to the local executive body. The defendants in such cases should be the akims of the relevant administrative-territorial unit, who head the local executive body. Depending on the category of the dispute, such claims may be filed against the owner of the land plot or against the developer (the person who erected the unauthorized building).
It should be borne in mind that if the unauthorized construction was created by contractors, the defendant will be the customer as the person on whose instructions the unauthorized construction was carried out.
In each specific case, the composition of third parties whose participation is necessary for the proper resolution of the case is determined by the court by the content of the subject matter and grounds of the plaintiff's claims, the defendant's objections and the laws to be applied.
It should be borne in mind that the decision taken in the case may affect the scope of the rights and obligations of these persons.
The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.
Paragraph 11 of the regulatory resolution "On certain issues of dispute resolution related to the protection of Home Ownership" clarifies that a claim for recognition of ownership of an unauthorized dwelling is brought against a local executive body.
The plaintiffs have mostly correctly identified the defendant, and at the same time, there are lawsuits when the plaintiff's claims for recognition of the right to unauthorized construction are made against an improper defendant.
Article 50 of the CPC provides that in the event of a claim against an improper defendant, the court, in order to prepare the case for trial, explains to the plaintiff his right to file an application for replacing the improper defendant with a proper one.
The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.
Jurisdiction
In accordance with Part 1 of Article 31 of the CPC, claims for rights to land plots, buildings, premises, structures, other objects firmly connected with land (real estate) and others are filed at the location of these objects.
That is, disputes related to the recognition of ownership of an unauthorized building are considered at the location of the disputed property. If one of the parties to the case is a citizen, then such claims are considered by the district courts.
In cases where the parties to the case are individuals engaged in individual business activities without forming a legal entity and legal entities, the claim is subject to the jurisdiction of specialized economic courts in accordance with part 1 of Article 27 of the CPC.
When determining the jurisdiction of cases involving the application of the provisions of Article 244 of the Civil Code, the courts must take into account the subject matter of the parties to the dispute and the nature of the legal relationship in their entirety.
In order to become an object of relations regulated by Article 244 of the Civil Code, a building made by a person must be unauthorized.
When accepting a claim for recognition of ownership of an unauthorized non-residential building, as well as a claim by an authorized body for the demolition of such a building, questions often arise about jurisdiction when the plaintiffs in the first case or the defendants in the second case are individuals who are not registered as an individual entrepreneur, but the disputed property is being used or will be used. for business purposes.
Thus, in the absence of state registration of an individual as an individual entrepreneur, a dispute involving him is subject to the jurisdiction of a court of general jurisdiction.
The fact that the subject of the claim is an industrial premises that can be used for entrepreneurial activities does not affect the jurisdiction of the dispute, since the law does not restrict the right of individuals to own any property, including non-residential/industrial premises.
Thus, under the above circumstances, there are no grounds for refusing to accept a claim for recognition of ownership rights or for the demolition of such an unauthorized building by a court of general jurisdiction.
State duty
In accordance with Article 607 of the Tax Code, the state duty is a mandatory payment levied for the commission of legally significant actions and (or) the issuance of documents by authorized state bodies or officials.
By virtue of Article 149 of the CPC, a document confirming payment of the state fee is attached to the statement of claim.
Subparagraph 11) of Part 1 of Article 104 of the CPC stipulates that in claims for ownership of immovable property, the price of the claim is determined by the market value of such objects at their locations on the day of filing the claim.
Civil law disputes over the ownership of unauthorized buildings relate to property-related claims, respectively, subject to assessment. The disputed object is tangible and has a monetary value, therefore, its price is determined by market value.
According to subparagraph 1) of paragraph 1 of Article 610 of the Tax Code, unless otherwise provided by this paragraph, a state fee is charged on property claims: 1 percent from individuals and 3 percent from legal entities of the amount of the claim.
The state fee for filing a claim for recognition of ownership of an unauthorized building is payable based on the value of the property, with documents on its market value attached to the application (assessment report, information certificates on the market value of immovable property).
The rules of Part 1 of Article 109 of the CPC on the distribution of court costs with their award to the party in whose favor the decision was made do not apply to the category of cases on claims filed against a local executive body for recognition of ownership of an unauthorized building, and courts should not recover from local executive bodies in favor of plaintiffs the costs of paying state fees.
It should be assumed that the plaintiff has chosen judicial protection of his rights, while the defendant in such cases does not violate the plaintiff's material rights.
Earlier, the Supreme Court provided clarifications on this issue, including in the regulatory decree "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases."
These clarifications are reflected in the generalizations of the regions, which may indicate their widespread use in judicial practice and the absence of difficulties for the courts in this matter.
At the same time, there are cases when courts have accepted lawsuits and considered cases without assessing the market value of a real estate object or with only the title page of the real estate valuation report, while its research part contains approaches and methods, description, technical and design characteristics and other information about the research object in the materials. the case was missing.
The absence of a document confirming the market value of the constructed facility prevents the determination of the amount of the state fee to be paid when filing a claim.
Regulatory framework
The main regulatory legal acts regulating the recognition of the right to unauthorized construction and to be applied in the consideration of cases in this category are:
- The Constitution of the Republic of Kazakhstan; - The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code); - The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC);
- The Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code);
- The Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter – the Law on Architecture);
- The Law of the Republic of Kazakhstan "On Local Government in the Republic of Kazakhstan" (hereinafter – the Law on Local Government);
- The Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as the Administrative Code);
- The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (the Tax Code) (hereinafter referred to as the Tax Code);
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on the right of ownership of housing" dated July 9, 1999 No. 10 (hereinafter referred to as the regulatory resolution "On certain issues of the application of legislation on the right of ownership of housing");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of dispute Resolution related to the protection of Ownership of housing" dated July 16, 2007 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of Dispute Resolution related to the protection of Ownership of housing");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of land legislation by Courts" dated July 16, 2007 No. 6 (hereinafter referred to as the regulatory resolution "On certain issues of the application of land legislation by Courts");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by Courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9 (hereinafter referred to as the regulatory resolution "On the application by Courts of the Republic of Kazakhstan of legislation on court Costs in civil cases");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of Inheritance legislation by Courts" dated June 29, 2009 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of the application of Inheritance legislation by Courts");
- Rules for the organization of construction and the passage of licensing procedures in the field of construction, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 No. 750 (hereinafter referred to as the Rules for the Organization of construction)
- SNiP RK, regulating relations in the field of architecture, urban planning and construction. When considering disputes, the regulatory legal acts in force at the time of the emergence of the relevant legal relationship are subject to application.
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