Disputes concerning the boundaries of a land plot, restoration (establishment) of borders, removal of obstacles in the use of land plots
By virtue of subparagraph 21) of Article 12 of the Land Code, a land plot is a part of land allocated within closed boundaries, assigned in accordance with the procedure established by this Code to subjects of land relations. A land plot allocated within closed boundaries is a unit of accounting and data storage of the state land cadastre. In accordance with paragraph 3 of the "Rules for Maintaining the State Land Cadastre in the Republic of Kazakhstan", approved by Government Decree No. 958 dated September 20, 2003, identification characteristics are recorded in the Cadastre for each land plot, which make it possible to clearly identify it in space, determine its size and location, as well as the cadastral estimated value of the plot. According to paragraph 11 of the above Rules, a land plot is considered definitively formed if it has established boundaries and a land registry case has been opened on it. When considering disputes about the boundary of land plots, courts, as a rule, hold on-site court sessions with on-site inspection, and according to the court's determination, the relevant specialists carry out control measurements of the land plot. The main issues in resolving disputes about the restoration (establishment) of borders, the removal of obstacles in the use of land, i.e. boundary disputes are: whether the land plots actually occupied by citizens correspond to the title documents or the established order of use of land plots, whether there was a fact of seizure of a part of the land plot by the owner of the adjacent plot. For example, Ya. filed a lawsuit against G. and the State Institution "Department of Land Relations of the Akimat of Taraz" to determine the boundary of the land plot and oblige the defendant to demolish the illegally erected canopy, arguing that on the basis of the purchase agreement dated September 08, 1999, he bought from Z. a household with a land plot of 773 sq.m. The specified building was erected on his land plot by Z., who was also the owner of the neighboring plot.
Disputes concerning the boundaries of a land plot, restoration (establishment) of borders, removal of obstacles in the use of land plots
The disputed structure was erected by Z. without permission, and seizes part of his land plot with a total area of approximately 36 sq.m. When selling this house to him, Z. She undertook to demolish the disputed building and determine the boundaries of the adjacent plots. However, Z. For unknown reasons, she did not fulfill this obligation, having sold the neighboring plot of land, she left Kazakhstan. The plaintiff believed that G., when acquiring a house with a land plot, reliably knew that the disputed structure was not specified in the land plot plan and, accordingly, was not legalized. The claim was not recognized as a defendant due to the fact that the plaintiff's right to the land was not violated, since the border between the land plots was established by agreement of the previous landowners and determined by the existing fence. After acquiring the property, they did not make any changes to the boundary of the land plot. By the decision of the Taraz City Court, the claims were denied on the grounds that at the time of consideration of the case, the ownership of the plaintiff, the rightholder of the land plot, had not yet arisen due to his failure to apply to local executive authorities for the issuance of an act on the right of private ownership of the disputed land plot. The decision was changed by the decision of the appellate judicial board of the Zhambyl Regional Court. It was decided to dismiss Ya's claim. on determining the boundary of a land plot – to cancel and satisfy its requirement in this part. Determine the boundary boundary of the land plots between the houses according to the historically established boundary separated by a fence, that is, according to the actual use of the land plots at the present time. By changing the decision of the court of first instance, the appellate judicial board stated the following. It can be seen from the case file that the state act of ownership of the land plot before the acquisition of Ya. household was issued in the name of S. The head of the Zhambyl city Administration on 05/16/1996 on the basis of Resolution No. 149 dated June 06, 1994, where the land area is designated at 0.0773 hectares. Defendant G. owns the apartment on the basis of a purchase and sale agreement dated July 22, 2000, which was registered in accordance with the established procedure. This purchase and sale agreement states that the land area is 530 sq. m. The State Act on the land area of 0.053 ha was issued to the former owner, Z. based on the resolution of the head of the Zhambyl city Administration dated June 06, 1994. At an off-site court hearing, specialists from the State Institution "Department of Architecture and Urban Planning of the Akimat of Taraz", the RSE "Center for Real Estate in Zhambyl region" and the Taraz Urban Land Cadastre branch of NPCEM measured the disputed land plots and found that, according to actual measurements, the area of the land plot used by the plaintiff is 784 square meters, and the area of the land plot used by the defendant is 568 sq. m., i.e. they have land plots in use, the area of which exceeds the area indicated in previously issued land deeds (for former owners) and in purchase and sale agreements.
According to the TZKF NPTsem, there are no land cadastre files for these land plots, since during the land reform period of 1993-1995, land acts were produced to the owners without land management work. The Court of Appeal found that Ya. he purchased a house with a plot of land from Z., the boundaries of which, at the time of the conclusion of the purchase and sale agreement, were defined and fenced off from the land plot by G. with a fence, and for 10 years he did not declare any claims regarding the boundary boundary to G.. At the meeting of the appellate instance, the parties confirmed that after they acquired a house with a land plot, the boundary boundary, the size and configuration of their land plots did not change and use the land plots according to the historically established boundary boundary established by the former owners of the houses. In such circumstances, the board concluded that the court of first instance should have determined the boundary boundary of the disputed land plots along the historically established boundary separated by a fence, determined by the former owners of the households, i.e. according to the actual usage of the parties at the present time. In this regard, the appellate judicial board, having changed the decision of the court of first instance, issued a new decision to satisfy the claim in this part, while agreeing with the court's decision regarding the refusal of the claim to oblige the defendant to demolish the illegally erected canopy, since the plaintiff did not provide evidence in support of his claims that this building is located on his land plot.
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