Disputes related to the registration of property in the event that the heirs who have accepted the inheritance evade the registration of the property included in the inheritance or the rights to it, the creditors of the testator have the right to demand compulsory registration
JSC "F" (hereinafter referred to as the bank) filed a lawsuit against A. for compulsory registration of the property included in the inheritance. The claim was denied by the decision of the Ili District Court of the Almaty region dated February 26, 2020. By the decision of the Judicial Board for Civil Cases of the Almaty Regional Court dated June 3, 2020, the decision of the court of first instance remained unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts, and in the case adopted a new decision to satisfy the claims of JSC "F" against A. on compulsory registration of the property included in the inheritance. She ordered A. to register ownership of immovable property – a residential building and a land plot located at 76 50 Let Pobedy Street, Tuimebayeva village, Ili district, Almaty region, by April 1, 2021, on the following grounds. It follows from the case file that on June 29, 2007, between JSC "T" (now JSC "F") and S., A. A general loan agreement was concluded, under which the latter was granted a loan in the amount of 181,000 US dollars for consumer purposes, for a period of 180 months, at 16% per annum. Property in the form of an apartment building with outbuildings and a plot of land, located at the address: Almaty region, Ili district, Tuimebayeva village, 50 let Pobedy Street, 76, and owned by Yu. The final decision of the Ili District Court of Almaty region of November 28, 2012 in favor of JSC "T" with S., A. debts in the amount of KZT 11,786,864 and court costs in the amount of KZT 353,606 were collected. According to the death certificate dated July 21, 2009, the mortgagor Yu. He died on May 6, 2009. After Yu's death. the heirs did not apply to the notary for acceptance of the inheritance.
Disputes related to the registration of property in the event that the heirs who have accepted the inheritance evade the registration of the property included in the inheritance or the rights to it, the creditors of the testator have the right to demand compulsory registration
The defendant A. lives in the house, who actually accepted the inheritance, since she lived and continues to live in the above-mentioned house, and a burial allowance was assigned by the authorized body. In this regard, the bank asks to force A. to register after the death of Yu. the immovable property located at the above address is registered with the authorized registration authority. The local courts, rejecting the claim, came to the conclusion that the mortgaged real estate was registered to the deceased Yu., The inheritance has not been accepted by the heirs since 2009. The Judicial Board considers that judicial acts of local courts are illegal, therefore they are subject to cancellation with the issuance of a new decision on the satisfaction of the claim. In accordance with paragraph 5 of Article 8 of the Civil Code (hereinafter referred to as 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.
In accordance with paragraph 2 of Article 1072-1 of the Civil Code, it is recognized that the heir has accepted the inheritance if he has performed actions indicating the actual acceptance of the inheritance. The actions related to the actual acceptance of the deceased Yu's inheritance were committed by the defendant. When receiving the loan and signing the general loan agreement dated June 29, 2007, A. indicated her residential address, which was specified in the real estate pledge agreement. A. lived in the said house until Yu's death. and she currently lives in this house, since she has received notifications about the date of consideration of the present case sent to the place of inheritance. Thus, the defendant actually accepted the inheritance after Yu.'s death, but she evades and does not take measures to formalize and register it in accordance with the procedure established by law. By analogy with paragraph 2 of Article 1081 of the Civil Code, which establishes that if the heirs who have accepted the inheritance evade registration of the property included in the inheritance or the rights to it, the creditors of the testator have the right to demand compulsory registration, therefore the Bank's claims are legitimate and justified, subject to satisfaction.
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