Disputes about the purchase of housing due to the statute of limitations
R. and V. filed a lawsuit against K. A. and Sh. on the eviction, arguing that according to the agreement on the privatization of the apartment dated October 12, 1993 and the certificate of inheritance under the law dated July 11, 1997, they and L. are the owners of apartment No. 271, located at the address: Karaganda, Orbita 1 microdistrict, building 3 - 3a (hereinafter – disputed apartment), however, K. illegally moved into it and lives there. together with family members. The defendant was repeatedly offered to voluntarily vacate the apartment, but she refused. K. filed a lawsuit against R., V. and to the Akimat of the city of Karaganda on the recognition of ownership rights by virtue of the statute of limitations, explaining the requirements by the fact that since 2000, together with his family, with the permission of the KSK, he has been living in an abandoned disputed apartment, since that time openly uses the property, bears the burden of its maintenance. By the decision of court No. 2 of the Kazybekbiysky district of the city of Karaganda dated January 25, 2018, the claim of R., V. for eviction was satisfied. In satisfaction of the claim of K. the recognition of ownership rights by virtue of the statute of limitations was refused. By the ruling of the same court dated January 25, 2018, K.'s claim against L. the recognition of ownership rights by virtue of the statute of limitations was terminated due to his death. By a resolution of the judicial board for Civil Cases of the Karaganda Regional Court dated April 12, 2018, the court's decision was overturned, and a new decision was issued.
Disputes about the purchase of housing due to the statute of limitations
K.'s claim is satisfied. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. Canceling the decision of the court of first instance and adopting a new decision, the board, referring to the provisions of Article 240 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), indicated that K. She and her family have been living in the disputed apartment openly and continuously for over 15 years, during which time she has borne the burden of maintaining it, moved into the apartment lawfully, therefore there are grounds for satisfying the claim for recognition of K.'s ownership. for the specified property by virtue of the statute of limitations. On the contrary, the owners of the apartment, R. and V., left the Republic of Kazakhstan in 1999 and have not lived in the apartment since that time, which indicates that they have not committed any actions indicating their intention to retain ownership of the apartment. Meanwhile, these conclusions contradict the factual circumstances of the case and are based on a misinterpretation of substantive law. The court of first instance reliably established that the ownership of the disputed apartment was registered for R., V. on the basis of the apartment privatization agreement dated October 12, 1993 and the certificate of inheritance dated July 11, 1997. The court also found that R. -L.'s mother died in 1994. At the time of her death, R. was 18 years old, V. was 17 years old. In 1999, through the church, they went to study in Poland, the apartment was not sold by them and was left under the supervision of relatives. At the end of 1999, K., having established that no one lived in the disputed apartment, moved into it in 2000, while the chairman of KSK H. informed K. that the apartment has owners. These circumstances are not disputed by the parties and were confirmed by reliable evidence, which was assessed by the court of first instance in accordance with the provisions of article 68 of the Civil Procedure Code of the Republic of Kazakhstan. According to paragraph 1 of Article 240 of the Civil Code, a citizen or a legal entity who does not own property, but in good faith, openly and continuously owns real estate as their own for seven years or other property for at least five years, acquires ownership of this property (statute of limitations). It follows from the above rule that, in order to acquire ownership rights by virtue of the statute of limitations, three conditions must be met, the absence of any of which precludes the possibility of recognizing ownership rights on these grounds. Bona fide ownership of property should be understood as a legal situation in which the actual owner, as a result of a misconception, mistakenly believes that the object he possesses does not belong to anyone else, and he became the owner of the thing legally. Since moving into the apartment, it was known that it had owners. This is also evidenced by the negotiations between the owners and K. on the purchase of an apartment that took place in 2005, as a result of which it was not possible to formalize the transaction due to circumstances beyond the control of the parties. These circumstances were not disputed by the parties. Thus, the court's conclusions about the existence of all conditions for the recognition of K.'s property right. property rights due to the statute of limitations are erroneous due to a misinterpretation of the provisions of Article 240 of the Civil Code.
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