Disputes arising from housing law relations on the collection of housing and utility fees

 

The main regulatory legal acts regulating issues arising from housing legal relations on the collection of fees for housing and utilities are

The Constitution of the Republic of Kazakhstan,

The Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) dated 07/13/1999,

The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code) dated 07/01/1999,

The Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Housing Complex),

The Law of the Republic of Kazakhstan dated 26.07.2007 "On State registration of rights to immovable property and transactions with them".

The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (hereinafter – the Tax Code),

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 9 dated December 23, 2006 (hereinafter –NP) "On certain issues of application by courts of legislation related to debt collection for thermal and electric energy", as well as the Rules for the Provision of Public Utilities, approved by Resolution of the Government of the Republic of Kazakhstan No. 1822 dated December 07, 2000.

 

The parties to the cases of this category of cases can be both individuals and legal entities.

31 of the CPC, the statement of claim is submitted to the court at the defendant's place of residence. A claim against a legal entity is filed at the location of the body of the legal entity.

The practice of considering disputes on the collection of fees for housing and utilities, the parties to disputes may be providers of housing maintenance services, as well as individuals using housing, legal entities and individual entrepreneurs using residential premises for their main activities.

Based on this, the issue of jurisdiction is being resolved. Disputes involving individuals in accordance with Article 27 of the CPC are subject to resolution by a district and equivalent court. Disputes concerning defendants engaged in business activities without forming a legal entity, legal entities in accordance with paragraph 1 of Article 30 of the CPC, are considered by Specialized interdistrict economic courts.

In both cases, we are talking, as a general rule, about jurisdiction at the defendant's place of residence, unless the contract provides otherwise. Claims received in violation of jurisdiction are returned to the applicant, and cases accepted by the court are transferred to another court for consideration.

Based on the requirements of the procedural legislation, in particular paragraph 11) of Article 140 of the CPC, if a claim is made for debt collection from owners of premises (apartments) who evade participation in mandatory expenses for the maintenance of the common property of the condominium facility, as well as claims for debt collection based on public contracts for actually consumed services (electricity, gas-, heat, water supply, telephone and Internet services, cable TV, solid household waste disposal) a court order is issued.

           For example, by the ruling of the judge of the Abai District Court of Shymkent, South Kazakhstan region, dated 09.10.2015, the applications of JSC 3-Energoortalyk to B.R. and six other claims for debt recovery were returned with the explanation of JSC 3-Energoortalyk's right to apply to the court in the order of writ proceedings, with an explanation that, according to the specified requirements, debt collection is carried out on the basis of a court order.

               Furthermore, article 143 of the CPC provides grounds for refusing to accept and return an application for a court order. The judge refuses to accept or returns the application for a court order on the grounds provided for in Articles 153, 154 of this Code.

The ruling on the return of the application for the issuance of a court order does not prevent its re-filing after the elimination of the deficiencies that served as the basis for the return. In the event of cancellation of a court order on the grounds provided for in Article 148 of the CPC, these claims are considered by the court in accordance with Chapters 13-1 of this Code in a simplified procedure according to the general rules of claim proceedings.

               At the same time, it should be noted that the list of grounds provided by the CPC for the return of a statement of claim and refusal to accept it is exhaustive and cannot be interpreted broadly. According to paragraphs 1-4 of Part 1 of Article 153 of the CPC, the judge refuses to accept the statement of claim if:

1) the application is not subject to consideration and resolution in civil proceedings;

2) there is a court decision that has entered into legal force, issued in a dispute between the same parties, on the same subject and on the same grounds, or a court ruling on the termination of proceedings in connection with the plaintiff's rejection of the claim or on the approval of a settlement agreement between the parties or an agreement on the settlement of a dispute (conflict) through mediation;

3) there is an arbitration or arbitration court decision adopted in a dispute between the same parties, on the same subject and on the same grounds, and the court has become aware of this.

               So, for example, by the ruling of the judge of the specialized interdistrict Economic Court of Astana dated 09.09.2015, the application of Astanaenergosbyt LLP to Agrocenter-Astana LLP for debt collection for consumed electric energy in the amount of 1,169,143 tenge and court costs was refused, due to the fact that the definition of the specialized interdistrict economic court of Astana On 27.07.2015, a civil case was initiated to declare Agrocentristan LLP bankrupt, on the basis of subclause 3) of Part 1 of Article 50 of the Law of the Republic of Kazakhstan "On Rehabilitation and Bankruptcy", where it is indicated that any creditors' claims against the debtor may be brought only within the rehabilitation or bankruptcy procedures provided for by this Law, with the exception of claims for the performance of guarantees and sureties by third parties, as well as foreclosure on the subject of collateral in cases where the pledgor is a third party.

               In accordance with the requirements of art.154 of the CPC, the judge returns the statement of claim if: the case is not within the jurisdiction of this court; the application is filed by an incompetent person; the application is signed by a person who does not have the authority to sign it; there is a dispute between the same parties in the proceedings of the same or another court or arbitration or arbitration court. subject matter and for the same reasons; An agreement has been concluded between the parties in accordance with the law on the transfer of this dispute to arbitration or an arbitration court, unless otherwise provided for by legislative acts of the Republic of Kazakhstan; this was stated by the plaintiff.

               By virtue of Part 5 of Article 150 of the CPC, the application is signed by the plaintiff or his representative if he has the authority to sign and file a statement of claim.

 

 

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