Disputes related to housing relations, ownership is transferred to another person with all the encumbrances that existed at the time of the transaction.
B. filed a lawsuit with the municipal state institution (hereinafter – KGU) "Department of State Architectural and Construction Control of Almaty city", KGU "Department of Architecture and Urban Planning of Almaty city", republican state institution "Department of Public Health Protection in Almaty of the Committee for Public Health Protection of the Ministry of Health of the Republic of Kazakhstan" (hereinafter – RGU), RSU "Department of Emergency Situations in Almaty of the Committee for Emergency Situations of the Ministry of Internal Affairs of the Republic of Kazakhstan", A. on the invalidation of the act of the acceptance commission and the cancellation of its state registration, arguing that on October 18, 2017, he entered into a barter agreement with A., under which he exchanged his apartment building for the defendant's apartment. At the time of the conclusion of the contract, the defendant concealed the fact of redevelopment of the apartment from a two-room to a three-room by converting the storage room into a living room in violation of the requirements of the law. By the decision of the Medeu District Court of Almaty dated August 20, 2018, the claim was satisfied, the act of the acceptance commission dated September 1, 2015 No. 1799 on the commissioning of the redevelopment of a residential apartment (hereinafter referred to as the Act of the Acceptance Commission) located at the address: Almaty, Zhetysu district, Dorozhnik microdistrict, house 24, apartment 5 was declared invalid. (hereinafter referred to as the Apartment). Its state registration has been cancelled. By the decision of the Judicial Board for Civil Cases of the Almaty City Court dated December 19, 2018, the decision of the court of first instance remained unchanged.
Disputes related to housing relations, ownership is transferred to another person with all the encumbrances that existed at the time of the transaction.
The Judicial Board for Civil Cases of the Supreme Court quashed the judicial acts of the local courts and issued a new decision to dismiss B.'s claim on the following grounds. It follows from the case file that the local courts, satisfying B.'s claims for invalidation of the Act of the acceptance commission and cancellation of its state registration with the judicial authorities, proceeded from the fact that the contested act of the acceptance commission did not comply with the applicable norms and rules. Thus, in support of their conclusions, the local courts indicated that the apartment was redeveloped with gross violations of sanitary standards 1.04-26-2011 "Reconstruction, capital and current repairs of residential and public buildings", without compliance by the members of the acceptance commission with the regulations on the acceptance of redevelopment into operation. As established, the newly equipped living room, room No. 7 according to the technical data sheet, has no windows, which is a violation of subclauses 6.10.1, 6.10.2, 6.10.3 of the CH RK "Technical requirements for dwellings", subclause 9.5, paragraph 9 of the SNiP RK 3.02-43-2007 "Residential buildings" that require natural lighting. The courts took into account the fact that the owner of apartment A. was brought to administrative responsibility on June 3, 2015 for violating the requirements of architectural and construction legislation. The courts also took into account the explanations of representatives of authorized bodies about the lack of documentation necessary for issuing the disputed Act of the acceptance commission. Meanwhile, the judicial board considered these conclusions of the judicial instances to be erroneous. As established, the plaintiff, prior to the conclusion of the barter agreement dated October 18, 2017, inspected the apartment and saw the condition of the dwelling, including the converted room. In addition, the barter agreement specifies the Act of the Acceptance commission as the title document, which indicates that the plaintiff is aware of the redevelopment of the apartment and the transfer to him of exactly the property provided for in the contract. In accordance with paragraph 1 of Article 188 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), ownership is transferred to another person with all the encumbrances that existed at the time of the transaction.
Consequently, the plaintiff, who purchased an apartment with redevelopment, has no right to challenge the legality of the Act of the Acceptance commission received by the previous owner. In the absence of the right of claim to challenge the Act of the acceptance commission, the plaintiff's arguments about violations committed by the defendants in the preparation of this document cannot be the basis for invalidating it. Moreover, the court's invalidation of the Acceptance Commission's Act was the basis for the decision of the Almaty City Court of Appeal dated December 24, 2018, which satisfied B.'s claims. on challenging the barter agreement dated October 18, 2017. In such circumstances, the judicial board considered the arguments of the petition about the unfair behavior of the plaintiff to be justified. In accordance with paragraph 5 of Article 8 of the Civil Code, actions of citizens and legal entities aimed at harming another person, abuse of the right in other forms, as well as the exercise of the right in contradiction with its purpose are prohibited.
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