Elimination of obstacles by destroying an independently built structure and a fence located on a land plot
August 20, 2025 No. 7599-25-00-2A/6263 as part of the judicial board for civil cases of the Almaty city court, presiding judge Baratbekov T. K., judges Abdrakhmanova B. S. and Alimbayeva G. O., plaintiff K. A. Ma, his representative Z. Ba, defendant A. K. OA, his representative G. At an open court session with the participation of sarzhanov, the decision of the Nauryzbay District Court of Almaty dated August 8, 2024, taken on a civil case initiated by the plaintiff ka ma to oblige the defendant Akoa to remove obstacles by destroying an independently built structure and fence, not to interfere with his family's entry into his premises, was considered on the appeal of the defendant,
It was determined: K. A. Ma appealed to A. K. OA with this claim to the court. By the decision of the Nauryzbay District Court of Almaty dated August 8, 2024, the claim was satisfied.
The owner of 2 apartments in Almaty, Nauryzbay district, Karagaily microdistrict, Makash Tatimova Street, house 79, is obliged to remove obstacles by destroying the fence and the fence located on the land plot of A. K. OA and not interfere with the defendant to enter and leave the plaintiff's family's premises. By the decision of the Judicial Board of the Almaty city court for civil cases dated November 18, 2024, the court decision was left unchanged.
By the resolution of the judicial collegium for civil cases of the Supreme Court of the Republic of Kazakhstan dated May 28, 2025, the resolution of the judicial collegium for civil cases of the Almaty city court dated November 18, 2024 was canceled. The civil case was sent to the Almaty city court for fresh consideration in a different composition.In the course of a new consideration by the appeal board, in the appeal of the defendant, the court did not agree with the decision and asked to cancel the decision of the Nauryzbay District Court of Almaty dated August 08, 2024, to completely dismiss the plaintiff's statement of claim.
To cancel or change a court decision on appeal in accordance with paragraph 1 of Article 427 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC)
1) incorrect definition and definition of the range of circumstances relevant to the case;
2) failure to prove the circumstances established by the court of first instance that are relevant to the case; 3) inconsistency of the conclusions of the court of First Instance set out in the decision with the circumstances of the case; 4) violation or improper application of the norms of material or procedural law; 5) the basis for the obligation to keep the minutes of the court session is the court session provided for by this code, the absence of the minutes of individual procedural actions in the case.
The court of first instance, during the consideration of the case, determined the following: in the documents establishing the right of ownership submitted by the plaintiff to the court, it is stated that the right of private ownership of the land belonging to the plaintiff himself is common share. All ownership documents were obtained in 2009. The defendant is recognized as the owner in accordance with the contract for the purchase of a house with a land plot dated January 31, 2013. In this agreement, the land plot is not specified as a common share.
In the aforementioned house, the defendant lives with his family. The plaintiff's apartment is located at the end of the courtyard, so the exit to the street passes through the courtyard belonging to Apartment 1, 2, it was proved during the court session on 13.10.2023.
During the inspection of the object located at the address: Almaty, Nauryzbay district, Karagaily district, M. Tatimov STR., House 79 (previously-seifullin STR., House 55), Apartment 2, the subject of compliance with the requirements in the field of architectural, urban planning and construction activities is a residential building on a land plot (Litera.it is said that the construction of a residential building (litera1), a roof (Litera) was established.
According to the information provided by the branch of the NJSC" government for citizens " in Almaty (hereinafter referred to as the State Corporation) dated 21.11.2023 No. WT – 2023-02322088, the area of land belonging to M. Tatimova Street 79 is 0.1140 hectares, including the share size of the land plot:
- 0.0560 hectares of Ma Ka (3 apartments) ,-0.0110 hectares belong to the AK CA (2 apartments), -0.0470 hectares
"I don't know," he said. On the basis of those mentioned, the court of first instance, the defendant A. K. CA illegally built the foundation and the yard surrounding the condominium land without any documents without a decision of the competent authorities and without registration with the registration authorities in the manner prescribed by a special law, concluded that it was surrounded.
That is, the plaintiff passes through the courtyard belonging to 1, 2 apartments to get out into the street, so he considered the plaintiff's claim to be legal. Based on these circumstances, the plaintiff's claim is confirmed by the documents studied in court, the totality of the circumstances of the case. However, the judicial board disagrees with this statement for the following reasons:
In accordance with Parts 1, 2 of Article 209 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), property owned by two or more persons belongs to them on the right of common ownership. Property can be in common ownership with the establishment of shares in the right of ownership of each of the owners (shared ownership) or without the establishment of such shares (joint ownership).
In Part 4 of this article, common ownership of the divisible property appears in cases stipulated by legislative acts or contracts. In accordance with Part 5, the shared ownership of these persons may be established by agreement of the participants in joint ownership, and in case of failure to reach an agreement - by court decision.
At the same time, Part 1 of Article 53 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Code) states that a land plot owned by two or more persons belongs to them on the right of common ownership. Part 3 of this article states that the land plot may be in common ownership, where the share of each owner is determined (shared ownership) or the shares are not determined (joint ownership).
And in accordance with parts 5, 6, Land shares in common shared ownership or common shared land use for a land plot are an independent object of rights and obligations in relation to land, unless otherwise established by legislative acts of the Republic of Kazakhstan.
The procedure for using a land plot in common ownership is established by a contract between the participants in common ownership. In case of failure to reach an agreement between them, the procedure for use is determined by the court. The agreement of the participants or the decision of the court on the procedure for using the land plot is subject to state registration in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
During the study of the case documents, the following points were identified. The 3rd apartment of the one-story, three-apartment house No. 9, built in 1969 for K. A. Myshirova, was transferred to private ownership on the condition of privatization No. 160 dated 03.12.1992.
Based on the decision of the Akim of the karagaily rural territory No. 11-96 dated 14.11.2006, Karagaily village, seifullin Street house No. 55, Cadastral number 03-047-425-369, the land plot with an area of 0.056 hectares in the settlement was granted the right of private ownership of the land plot for personal subsidiary farming. On 11.07.2008, an act was issued granting the right of private ownership of a land plot No. 704953, the form of use: for conducting your own subsidiary Farm.
On the basis of the decree of the president of the Republic of Kazakhstan dated 16.04.2014 No. 798 "on changing the boundaries of the city of Almaty", according to the information provided by the Almaty regional branch of the RSE "zher NCE" on land plots, the land plot entered the territory of the city of Almaty with Cadastral number 03-047-425 369 and was assigned Cadastral number 20-322-029 056.
Almaty, Nauryzbay district, seifullin STR., House 55/3, Karagaily microdistrict, Cadastral number 03-047-425-369 for the land plot K. A. Ma No. puz dated 17.07.2014-14-8-284 in accordance with the Order, Land Management works were carried out.
As a result, according to the actual fence, the area of the land plot amounted to 0.1390 hectares, including the share of 0.0560 hectares, on 19.01.2015 an act was issued granting the right of common share to the land plot No. 0099053, form of Use:
own subsidiary farming. The shares are determined under the agreement on the use of the land plot:
- share of Ma Ka 0.0560 ha
- share of AK CA 0.0360 ha
- share of SA Ha 0.0470 ha.
(Based on the information of the State Corporation dated 12.07.2023 No. Fri-2023-01255048). Subsequently, the State Corporation issued the following information with letters No. ZHT-2023-023220886 dated 21.11.2023, No. ZHT-2024-04470942 dated 24.06.2024:
Cadastral number 20-322-029-056 land plot with an area of 0.1140 ha in total shared ownership in accordance with the information system "unified state real estate cadastre" is a plot and: 1) share of Ma-0.0560 ha; 2) share of Ha sa – 0.0470 ha; 3) the share of the Central Bank of the Republic of Kazakhstan – 0.0110 ha.
The amount of these land shares is not disputed by the parties at the court session.In turn, the defendant A. K. CA is recognized as their owner in accordance with the contract of sale of the 2nd apartment of the house with a land plot of 0.0057 hectares as of January 31, 2013.
By the resolution of the mayor No. 9-59 dated September 25, 2013, Saikeska A. K. was granted an additional land area of 0.0035 hectares, with a total area of 0.0110 hectares of land for subsistence farming. It was believed that the land plot is not subject to allocation.
On December 11, 2013, a state act on the right of private ownership of a land plot with a cadastral number 03-047-425-1072 was issued. Almaty, Nauryzbay district, seifullin STR., House 55/2, Karagaily microdistrict, Cadastral number 03-047-425-369 for the land plot of the Central Bank of the Republic of Kazakhstan No. 06.08.2014-14-8-831 on the basis of the order, work was carried out on the land plot.
As a result, the actual area of the land plot amounted to 0.1390 hectares, including the share of 0.0110 hectares, on 19.02.2015 Act No. 0100716 was issued, granting the right of common share to the land plot, the form of use: for the maintenance of its own subsidiary Farm. According to the Order No. 4892 of 22.02.2021 from Kane, re-measurements were carried out on the land plot, the cadastral number is 20-322-029-056, the area is 0.1140 hectares, including the share is 0.0110 hectares, the State Act No. 2104071420059047 was issued.
According to the Order No. 4892 of 22.02.2021 from Kane, re-measurements were carried out on the land plot, the cadastral number is 20-322-029-056, the area is 0.1140 hectares, including the share is 0.0110 hectares, the State Act No. 2104071420059047 was issued. The reason for the transition of land plots from the right of private ownership to the right of shared ownership is as follows: in the letter of the Almaty branch of the RSE "RSE" Zherr " dated 11.08.2014 No. 19474, it was stated that work was carried out on the land plot, as a result of which it was established that the land plot under registration has structures belonging to three owners.
According to Article 53 of the code: a land plot that is jointly owned by two or more persons belongs to them with the right of common ownership. The procedure for using a land plot in common ownership is determined by mutual consent of the owners. In case of failure to reach an agreement, the procedure for use is established by the court. In this regard, it is reported that for further registration, an agreement on the common use of the land plot, signed by all affiliated owners, is required.
Therefore, on the basis of the agreement signed by the parties on the use of the land plot registered in the land Cadastral file dated 20.11.2014, the land share of the state is 0.0560 hectares, the land share of the state is 0.0470 hectares and the land share of the state is 0.0110 hectares.
Each participant in common shared ownership in accordance with paragraph 6.1 of the agreement, within the limits stipulated by the laws of the Republic of Kazakhstan, in compliance with the requirements of Article 216 of the Civil Code,it is said that at will it can exercise the right to donate, sell, inherit its share.
Having studied these circumstances, the parties voluntarily transferred the lands transferred to private ownership to the right of Common Share on the basis of a written agreement and issued state acts. In other words, the judicial board determines that in accordance with Part 5 of Article 209 of the civil code, by agreement of the participants in joint ownership, the shared ownership of these persons is established in common ownership.
And on the basis of Part 1 of Article 213 of the civil code, the possession and use of property in shared ownership must be carried out with the consent of all its participants. For this reason, each share was established by the owner himself, in the amount transferred to the first private property, the right to own and use it at its location. In accordance with Part 3 of Article 188 of the civil code, the owner has the right to perform any actions at his discretion in relation to the property belonging to him, to own, use and otherwise dispose of the property.
On the basis of the said, the defendant has the right to make any actions at his discretion on the land plot belonging to him. The Department of urban planning control of Almaty, Almaty, Nauryzbay district, Karagaily District, 79 Tatimov STR., 2 apartments on the issue of checking the legality of construction, within the framework of its competence reported the following.
"During the inspection of the object located at the address:
Almaty, Nauryzbay district, Karagaily district, M. Tatimov STR., 79, Apartment 2, the subject of compliance with the requirements in the field of architectural, urban planning and construction activities is a residential building on a land plot (literch.A.), residential contiguous construction (literch.A1), it was established that the roof (liter) was erected. Also, during the inspection of the facility, it was found that a foundation measuring 5.5 m x 6.6 m was laid on the above-mentioned plot of land under the existing roof with a basement device measuring 2.7 m x 3.0 m and a height of 1.73 m. During the inspection of the above-mentioned object, it was not established that construction and assembly works are being carried out.
The layout and Square area of the residential building correspond to the technical passport issued by the State Corporation as of January 29, 2020.» As a result of this audit, the judicial board did not identify any violations of the law in the course of construction and assembly works with the defendant.
The plaintiff's claim that since his apartment is located at the end of the courtyard, there is no way out to the street, except for the passage through the courtyard of the defendant, the judicial board considers it insufficient to satisfy the claim.
At the same time, the plaintiff, the defendant's decision that there is an additional exit from the land plot, is taken into account by the judicial board, because the plaintiff can go to the paved road with the back of his house, there is 1.5-2 meters between the plaintiff's House and the neighboring Daniyar's barn, and it is established that he is entering and leaving the house on the same road today.
In the event that it is too difficult to navigate this path or causes some other inconvenience, the judicial board considers it necessary to resolve this issue on the basis of the requirements of articles 67, 69 of the code.
In the drawings on the location of the plaintiff's land area, the judicial board comes to the conclusion that there is an interval between a land plot of 0.0110 hectares belonging to A. K. OA and a land plot of 0.0250 hectares, which passes to a land plot belonging to K. A. Ma, and they do not border each other. After all, according to the decision of the judicial board dated 14.10.2024, the letter of the State Corporation dated 05.11.2024 No. 48993-11 corresponds to the plan and scheme of the land plot, two land plots are adjacent.
The judicial board, assessing the above-mentioned circumstances and other collected delusions in the context of the law, comes to the conclusion that the claim of the plaintiff K. A. Ma is subject to a new decision to refuse to satisfy.
Thus, the court decision on the satisfaction of the claim of the plaintiff is subject to termination, the refusal to satisfy the claim, and the appeal is subject to satisfaction. In addition, the defendant applied for the help of advakat and filed a request to recover from the plaintiff for expenses in the amount of 300,000 tenge due to his participation in the court.
In accordance with Part 1 of Article 113 of the civil code, the court, at the request of the party in favor of which the decision was made, charges the expenses for payment for the assistance of a representative (several representatives) who participated in the process and are not in an employment relationship with this party in the amount of expenses actually incurred by the party. The total amount of these expenses for property claims should not exceed ten percent of the satisfied part of the claim.
The amount of expenses for claims of a non-property nature is collected within reasonable limits, but it should not exceed three hundred monthly calculation indices. In accordance with paragraph 14 of the normative resolution of the Supreme Court of the Republic of Kazakhstan "on the application of the legislation on judicial expenses in civil cases by courts of the Republic of Kazakhstan", the court should be guided by the criteria of honesty, fairness and reasonableness provided for in paragraph 4 of Article 8 of the civil code and part five of Article 6 of the civil code.
Given this, as well as the fact that the main claim filed by the plaintiff is of a non-property nature, the judicial board, based on the principles of fairness and reasonableness, considers the defendant's expenses to the representative to be collected in the amount of 150,000 tenge. On the basis of the above and guided by subparagraph 3) of Paragraph 1 of Article 424 of the APC, articles 425 and 426, the judicial board decided:
to terminate the decision of the Nauryzbay District Court of Almaty on this civil case dated August 8, 2024. To make a new decision on the refusal to satisfy the claim of the plaintiff K. A. Ma. Ka Madan to recover 150,000 (one hundred and fifty thousand) tenge paid for the assistance of a lawyer in favor of the defendant Akoa.
To satisfy the defendant's appeal. The decision of the judicial board comes into legal force from the moment of its publication and may be revised in accordance with the requirements of the Civil Procedure Code of the Republic of Kazakhstan.
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