Disputes about the ownership of property and the allocation of a share
In accordance with Article 209 of the Civil Code, property (housing) owned by two or more owners belongs to them by right of common ownership.
The property (dwelling) may be in common ownership with the definition of the share of each owner (shared ownership) or without the definition of such shares (joint ownership).
By agreement of the participants in joint ownership, and if no agreement is reached, by a court decision, shared ownership of these persons may be established for the common property (housing).
According to Article 210 of the Civil Code, if the size of the shares of participants in shared ownership is not determined by law and is not established by agreement of all its co-owners, the shares are considered equal.
At the same time, in accordance with Article 211 of the Civil Code, a participant in shared ownership (when the property is owned and everyone's shares are defined in the contract), who has carried out inseparable improvements at his own expense in compliance with the established procedure for using common property (that is, with the consent of other co-owners), has the right to a corresponding increase in his share in the right to common property
Separable improvements to common property
Unless otherwise stipulated by the agreement of the participants in shared ownership, they become the property of the participant who produced them. For example, if one of the co-owners has attached a barn to a house owned jointly by several persons, and no agreement has been reached between the co-owners that the barn will become jointly owned, then it remains owned by the person who built it.
In accordance with Article 218 of the Civil Code, a participant in shared ownership has the right to demand the allocation of his share from the common property.
If the participants in the shared ownership fail to reach an agreement on the method and conditions of dividing the common property or allocating the share of one of them, the participant in the shared ownership has the right to demand in court that his share in kind be allocated from the common property. For example, to ask the court to allocate him specific living quarters, extensions, the size of which would correspond to his share, with the establishment of a separate entrance to the housing construction.
If the defendant does not agree with the option proposed by the plaintiff for the division of a jointly owned dwelling, the court must request its options for division from the defendant(s). If the plaintiff does not agree with them, a judicial examination is appointed in the case to determine the optimal division option without disproportionate damage to the home, which is jointly owned.
If the allocation of a share in kind is impossible without disproportionate damage to the property in common ownership, the separating owner, who asked the court to allocate his share in kind, having made sure that this is impossible on the basis of an expert opinion, may, in accordance with art. 49 of the CPC, change his claims and request that the value of his share be paid to him by other participants. However, it should be borne in mind that the court may decide to pay the value of the share of a prominent participant in common shared ownership only if the distinguished participant himself, who is the plaintiff in the case, requests the court to do so. Without his consent, payment of compensation for his share in the dwelling is not allowed (paragraph 4 of Article 218 of the Civil Code).
If other participants in common shared ownership demand the division of joint property and instead of allocating the share of another participant who is a defendant in the case, they ask the court to oblige them (the plaintiffs) to pay the defendant the value of his share, leaving them a share in kind (and such claims are not uncommon in judicial practice), the court should keep in mind that the payment compensation to a participant in shared ownership by other co-owners instead of allocating his share in kind is allowed only with his consent.
Only in cases where the share of the relevant co-owner is insignificant, cannot be effectively allocated, and he has no significant interest in using the common property, the court may, in the absence of the consent of this owner, oblige the other participants in the shared ownership to pay compensation to him.
When making such a decision, the court must indicate in the decision that after receiving the full value of the share of the co-owner, to whom compensation is provided instead of allocating the share in kind, ownership of it ceases.
If the plaintiff does not agree to receive the value of his share from other co-owners, and the division of a shared dwelling is impossible and clearly impractical (for example, a studio apartment), the other respondent participants also do not agree to any other options, then the court has the right, on the basis of paragraph 6 of art. 218 of the Civil Code, to decide on the sale of property. from public auctions with the subsequent distribution of the proceeds between the participants in the common ownership in proportion to their shares.
If the division of joint property and the allocation of the plaintiff's share from it is possible, however, it is impossible to distribute the premises in equal shares or in amounts corresponding to the shares of the participants in joint ownership due to differences in the size of the premises or for other valid reasons, then according to paragraph 4 of Article 218 of the Civil Code, the disproportionality of the property allocated in kind to the participant in shared ownership, The ownership interest is eliminated by payment of monetary or other compensation for the difference. The amount of compensation is determined based on the market value of the dwelling at the time of the dispute (paragraph 8 of the normative Resolution of the Supreme Court No. 10 of July 9, 1999 "On certain issues of the application of legislation on the right of ownership of housing).
If a claim is filed with the court for the division of common joint ownership, rather than shared ownership, then it must be borne in mind that, in accordance with art. 221 of the Civil Code, the division of common property between the participants in joint ownership, as well as the allocation of a share of one of them, can be carried out subject to a preliminary determination of the share of each participant in the right to common property (dwelling). When dividing common property (housing) and allocating a share from it, unless otherwise provided by legislative acts or by agreement of the participants, their shares are recognized as equal.
The grounds and procedure for dividing common property and allocating a share from it are determined according to the rules of p. 218 of the Civil Code.
For example, if a court has received a claim for the division of a privatized dwelling, where the shares of co-owners are not defined by the privatization agreement, the court, with reference to art. 221 of the Civil Code, must first determine the shares of the participants in the joint apartment as equal and only after that decide on the division of the apartment or the allocation of the share of participants.
When considering such disputes, the courts should also be guided by the normative resolution of the Supreme Court No. 10 of July 9, 1999, as amended on June 18, 2004, "On certain issues of the application of legislation on home Ownership", as well as Articles 32-38 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family".
Allocation of your share in kind
In particular, if no agreement has been reached between the participants in shared or common joint ownership of residential premises on its division, the participant has the right to demand the allocation of his share in kind.
In such cases, based on the documents submitted by the parties and the options for the section in each case, the court needs to discuss whether a forensic technical examination should be ordered. The court may appoint a forensic technical examination in the case to obtain an opinion on the possibility of allocating part of the dwelling and buildings for household purposes in accordance with the shares of co-owners in compliance with technical, fire, sanitary standards, on all permissible options for allocating or transferring premises, including taking into account the options proposed by the parties, as well as about the cost of housing and other buildings, the cost of each part of the house expected to be allocated, the amount of costs required for renovation, etc.
Experts in construction and public utilities can be assigned to carry out the examination. If the examination is ordered on the initiative of the court, the parties are responsible for paying the costs of conducting it.
The allocation of his share to the owner means the transfer to his ownership of a certain isolated part of the dwelling and household buildings, which entails the termination of the right of joint ownership (art. 218 of the Civil Code) and each of the co-owners becomes the owner of his share determined by the court.
It should also be borne in mind that the utility rooms (kitchen, corridors, etc.) are not subject to division and should be left in common use.
Since participants in common shared ownership have equal rights in relation to housing in proportion to their share in it, the court, when allocating a share in kind, must transfer to the co-owner a part of the dwelling and non-residential premises corresponding in size and value to his share, if possible without disproportionate damage to the economic purpose of the buildings.
Disproportionate damage to the economic purpose of buildings should be understood as a significant deterioration in the technical condition of the house, the transformation of residential premises as a result of conversion into non-residential, the inability to use the premises provided to the participant of the share for its intended purpose due to the small size, etc.
The impossibility of dividing a shared-ownership dwelling in kind, or allocating a share from it, does not exclude the participant's right to file a claim for determining the order of use of the dwelling (the procedure for considering such claims is described above).
Section of an apartment building under construction
The requirements for the division of an unfinished residential building can be satisfied by the court only with the permission of the Akimat and land management authorities to include other persons as developers in the agreement on the allocation of land. To clarify this issue, they must be involved in the case as third parties without independent claims. In addition, when considering such claims, architecture and urban planning authorities should also be involved, because it is these authorities that give permission for the construction of residential buildings.
In such cases, based on the documents submitted by the parties and the options for the section in each case, the court needs to discuss whether a forensic technical examination should be ordered. The court may appoint a forensic technical examination in the case to obtain an opinion on the possibility of allocating part of the dwelling and buildings for household purposes in accordance with the shares of co-owners in compliance with technical, fire, sanitary standards, on all permissible options for allocating or transferring premises, including taking into account the options proposed by the parties, as well as about the cost of housing and other buildings, the cost of each part of the house expected to be allocated, the amount of costs required for renovation, etc.
Experts in construction and public utilities can be assigned to carry out the examination. If the examination is ordered on the initiative of the court, the parties are responsible for paying the costs of conducting it.
The allocation of his share to the owner means the transfer to his ownership of a certain isolated part of the dwelling and household buildings, which entails the termination of the right of joint ownership (art. 218 of the Civil Code) and each of the co-owners becomes the owner of his share determined by the court.
It should also be borne in mind that the utility rooms (kitchen, corridors, etc.) are not subject to division and should be left in common use.
Since participants in common shared ownership have equal rights in relation to housing in proportion to their share in it, the court, when allocating a share in kind, must transfer to the co-owner a part of the dwelling and non-residential premises corresponding in size and value to his share, if possible without disproportionate damage to the economic purpose of the buildings.
Disproportionate damage to the economic purpose of buildings should be understood as a significant deterioration in the technical condition of the house, the transformation of residential premises as a result of conversion into non-residential, the inability to use the premises provided to the participant of the share for its intended purpose due to the small size, etc.
The impossibility of dividing a shared-ownership dwelling in kind, or allocating a share from it, does not exclude the participant's right to file a claim for determining the order of use of the dwelling (the procedure for considering such claims is described above).
Section of an apartment building under construction
The requirements for the division of an unfinished residential building can be satisfied by the court only with the permission of the Akimat and land management authorities to include other persons as developers in the agreement on the allocation of land. To clarify this issue, they must be involved in the case as third parties without independent claims. In addition, when considering such claims, architecture and urban planning authorities should also be involved, because it is these authorities that give permission for the construction of residential buildings.
According to Article 37 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", the division of the spouses' common property can be carried out both during the marriage (matrimony) and after its dissolution at the request of either spouse, as well as in the case of a creditor's claim to the division of the spouses' common property for foreclosure on the share of one of the spouses in shared property. The common property of the spouses may be divided between the spouses by their agreement. The agreement on the division of the spouses' common property must be notarized. In the event of a dispute, the division of the spouses' common property, as well as the determination of the spouses' shares in this property, is carried out in court.
In accordance with paragraphs 2, 3, 4 of art. 209 of the Civil Code, property may be in common ownership with the definition of the share of each of the owners in ownership (shared ownership) or without the definition of such shares (joint ownership). Common ownership of property is shared, except in cases where the law provides for the formation of joint ownership of property. Common ownership arises when two or more persons take ownership of property that cannot be divided without changing its purpose (indivisible things), or is not subject to division by virtue of law.
According to Article 210 of the Civil Code, if the size of the shares of participants in shared ownership cannot be determined on the basis of legislative acts and is not established by agreement of all its participants, the shares are considered equal. By agreement of all participants in shared ownership, the procedure for determining and changing their shares may be established, depending on the contribution of each of them to the formation and increment of common property.
Also, according to paragraph 1 of Article 189 of the Civil Code, the owner bears the burden of maintaining his property, unless otherwise provided for by legislative acts or a contract, and cannot unilaterally shift such a burden to a third party. If the property was lawfully held by third parties, then the expenses incurred by them for the maintenance of someone else's property are subject to compensation by the owner, unless otherwise provided by the contract. The expenses for the maintenance of property are not reimbursed to the person who possessed the thing in bad faith and unlawfully (Article 263 of this Code).
In accordance with paragraph 2 of article 218, the court bases its decision only on the evidence that was examined at the court session.
Paragraph 11 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On judicial Decision" states that the Decision cannot be based on assumptions about the circumstances of the case. The court has no right to refer in its decision to evidence that has not been examined at the court session.
Regulatory framework
The main regulatory acts governing relations in disputes over the allocation of shares are:
The Constitution of the Republic of Kazakhstan (Articles 6, 25, 26);
The Civil Code of the Republic of Kazakhstan;
Land Code of the Republic of Kazakhstan dated June 20, 2003 No. 442,
The Code of the Republic of Kazakhstan dated December 26, 2011 No. 518-IV "On Marriage (matrimony) and family",
The Law of the Republic of Kazakhstan dated 16.04. 1997 "On housing relations", etc.
The courts are also guided by the regulatory rulings of the Supreme Court of the Republic of Kazakhstan when resolving cases.
No. 9 dated July 18, 1997 "On the practice of applying legislation on the privatization of residential premises by citizens";
No. 10 of July 9, 1999 "On some issues of the application of legislation on the right of ownership of housing";
No. 3 dated April 20, 2006 "On the practice of judicial review of disputes on the right to housing abandoned by the owner"
No. 5 dated July 16, 2007 "On some issues of dispute resolution related to the protection of the right of ownership of housing",
No. 5 dated June 29, 2009 "On some issues of application of inheritance legislation by courts",
No. 6 of July 16, 2007 "On certain issues of the application of land legislation by courts".
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