Disputes related to the seizure of land
The conclusions of the local courts on the plaintiff's violation of the requirements of paragraph 1 of Article 94 of the Land Code of the Republic of Kazakhstan on notification of the mortgagee do not correspond to the circumstances of the case. The municipal state Institution "Office for Control over the Use and Protection of Lands of the city of Almaty" (hereinafter referred to as the Office) filed a lawsuit with the Limited Liability Company "A" (hereinafter referred to as LLP, Partnership), to a third party – Joint stock company "F" (hereinafter referred to as – JSC) on the compulsory seizure of a land plot, arguing that during the survey of the land plot belonging to the Partnership, it was established that the land plot was not used for its intended purpose. By the decision of the specialized interdistrict Economic Court of Almaty dated April 24, 2018, the Department's claim was denied. By the decision of the Judicial Board for Civil Cases of the Almaty City Court Court dated June 27, 2018, 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 issued a new decision to satisfy the claim of the Municipal State Institution "Office for Control over the Use and Protection of Lands of the city of Almaty".
Disputes related to the seizure of land
It was decided to forcibly withdraw from LLP "A" a land plot with an area of 21.385 hectares, cadastral number 20-321-043-006, located at the address: Almaty city, Alatau district, north of Akyn Sara Street, west of B.Momyshuly Street, on the following grounds. It follows from the case file that "A" LLP is the owner of a land plot with an area of 21.385 hectares, cadastral number 20-321-043-006, located at the address: Almaty city, Alatau district, north of Akyn Sara Street, west of B.Momyshuly Street, with a purpose for the construction and operation of multi–storey residential buildings with built-in facilities and parking. Ownership was registered on May 8, 2008. The State Inspector for Land Use and Protection, based on the land use survey act dated June 16, 2016, established that the above-mentioned land plot is not being used for its intended purpose and is empty. The order of the official of the Department dated June 17, 2016 on the need to take measures to use the land for its intended purpose by the defendant has not been fulfilled. It has been established that this land plot was provided by the defendant as collateral to secure its loan obligations to JSC "K" under the pledge agreement dated June 13, 2012 No. KKV-2012-00254, hereinafter JSC "B" under the additional agreement dated June 21, 2012 to the pledge agreement dated June 13, 2012 No. KKV-2012-00254. Subsequently, under the asset acquisition agreement dated July 1, 2017, concluded between JSC "B" and JSC "F", the security right for the above-mentioned land plot passed to the Fund, which registered the right of the mortgagee on October 31, 2017. These circumstances are not disputed by the parties. The judicial authorities refused to forcibly seize the land plot on the grounds provided for in Article 92 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code), due to non–compliance with the procedure established by law, since the mortgagee was not notified of the commencement of Disputes related to the seizure of land [/caption] procedures for seizure.
In accordance with paragraph 1 of Article 94 of the Land Code, the compulsory seizure of land plots from land owners and land users, provided for in articles 92 and 93 of this Code, is carried out in court at the request of the bodies exercising state control over the use and protection of land at the location of the land plot. In the event of a claim for the compulsory seizure of pledged land on the grounds provided for in articles 92 and 93 of this Code, the pledgee must be notified of the commencement of the procedure for the seizure of such land. Meanwhile, it can be seen from the case materials that the plaintiff sent notifications about the start of the procedure for the compulsory seizure of land to JSC "K" on January 24, 2017, to JSC "B", JSC "F" on January 24, 2018. In such circumstances, the conclusions of the local courts on the plaintiff's violation of the requirements of paragraph 1 of Article 94 of the Land Code on notification of the mortgagee do not correspond to the circumstances of the case. As established, this land plot has not been used for its intended purpose for ten years. Thus, the plaintiff's arguments about the defendant's non-use of the land plot for its intended purpose have not been refuted, therefore, the claims of the authorized body for the compulsory seizure of the land plot are justified.
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