Elimination of obstacles by destroying an independently built structure and fence obliges not to interfere with entering and leaving the room

August 08, 2024 No. 7585-24-00-2/581 case Nauryzbay District Court of Almaty considered a civil case on the claim filed at an open court session with the participation of: presiding judge Medetova a.m., secretary of the court session Akimbaeva M. B.: plaintiff: Kam defendant: ACO plaintiff'S claims: elimination of obstacles by demolishing an independently built structure and fence in Almaty, obliging the defendant not to interfere with the entry and exit of the plaintiff's family

The plaintiff indicates that Ma K. A. has been living with his family since 1980 in Apartment 3 of the three-apartment building No. 79, located on Makash Tatimova street, Karagaily microdistrict, Almaty, the total area of the land plot belonging to this house is 0.1390 hectares in accordance with the Land Act, of which 0.0560 hectares is his share, the size of the land plot corresponds to the law.

The owner of the apartment adjacent to K. A. Ma, OA Akna, illegally fenced the condaminium land of the courtyard in front of the door, preventing the plaintiff from moving through the courtyard due to the construction of the foundation, that is, the Condaminium built a foundation on the ground and blocked the access of the plaintiff and his family members to the street. The size of the land plot assigned to the defendant A. K. OA is indicated in the certificate issued on 12.07.2023 of the branch of the State Corporation NJSC "government for citizens" in Almaty, but this amount of land provided does not coincide with the second response of this state institution.

According to the information provided by the branch of the State Corporation Nao "government for citizens" in Almaty as of November 21, 2023 No. GT-2023 02322088 east number 79 M. Tatimova Street,the land area is 0.1140,including the share size of the land plot:-0.0560 hectares are owned by Ma Kulsunkan Abdubaitovna (3 apartments), -0.0110 hectares are owned by CA ACNA(2 apartments), -0,0470 hectares are listed as belonging to halimsapieva saniyam amraevna (1 apartment).

The plaintiff indicates that his apartment is located at the end of the courtyard and the left side is suitable, the exit to the street should go only through the common courtyard, there is no other way out to the street.

The defendant committed an illegal act of blocking the access of the plaintiff and his family members to the street by illegally surrounding the land transferred to this common shared property without the permission of the neighbors, laying a foundation (foundation ) on the territory of 0.0110 hectares of land belonging to him, as a result of which the plaintiff and his family are forced to go out to the street through the courtyard of the neighboring house behind the House.

The plaintiff shows that it is not possible to reach a common agreement with the defendant regarding this dispute, with his family in the first half of 2023, he tried to reach a peaceful agreement with the defendant on this issue, but repeatedly turned to the police, which ended in a scandal.

The plaintiff K. A. Ma, his representative Z. Baitenova at the court session fully supported his claim and asked the court to oblige the defendant to remove obstacles by destroying the fence and an independently built structure located on the land plot of House No. 79 Makash Tatimova street in Almaty, Karagaily microdistrict, and not interfere with the defendant to enter and leave the premises with his family.

The defendant was asked to collect in his favor the state fee of 3692 tenge, 300,000 tenge paid for the assistance of a lawyer, a total of 303,692 tenge. The defendant A. K. OA, his representative G. Sarzhanov, did not recognize the statement of claim at the court session, asked the plaintiff to completely dismiss the statement of claim and recover from the plaintiff 300,000 tenge paid for the assistance of a lawyer in favor of the defendant.

In accordance with Article 209 of the Civil Code of the Republic of Kazakhstan and articles 51.53 of the Land Code of the Republic of Kazakhstan, the right of private ownership of this land is common equity. Article 209 of the Civil Code of the Republic of Kazakhstan "the concept of common property and the grounds for its occurrence" states that 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). Common ownership of property is shared ownership, which does not include the times when the creation of common ownership of property is provided for by law.

Common property occurs when property falls into the ownership of two or more people, which cannot be divided until its purpose is changed (indivisible things), since it is not subject to Division according to the law. In cases where common ownership of the divisible property is provided for by legislative acts or contracts, the profit depends on the amount, by agreement of the participants in the property. will.

In case of failure to reach a joint agreement - by a court decision, the shared ownership of these persons may be established in the common property. Ownership of immovable property may occur under the contract,in which case individual parts of immovable property will be individually (separately) owned by citizens and (or) legal entities, and parts of immovable property that are not separately owned will belong to the owners of units of immovable property on the right of common shared ownership.

The share of each owner in the common property is inseparable from his separate ownership of the part of the real estate that belongs to him. The size of the share of each owner in the common property and the degree of participation in the costs of maintenance may be determined by the legal provisions of the legal regime of various types of condominium of separate(separate) parts of real estate,unless otherwise provided by legislative acts or contracts.

In addition, under Article 51 of the Land Code of the Republic of Kazakhstan, a land plot may be divisible and indivisible.

A land plot that can be divided into parts without changing its intended purpose and without violating fire, sanitary, environmental, construction and other mandatory norms and rules, after separation, a land plot is allocated, each of which forms an independent land plot, in the absence of which it is indivisible.

The allocation of agricultural land plots is carried out taking into account the norms provided for in paragraph 3-1 of Article 97 of this code.

The divisibility of the land plot and is indicated in the document. When making transactions with a divisible part of a land plot, this part must be previously allocated as an independent land plot in accordance with the established procedure.

In other cases, the subject of the transaction may be determined by describing in the contract or entering into the identification document the scope of the right established for the part of the land plot (lease, gratuitous use, easement, etc.).

Under Article 53 of this law, a land plot owned by two or more persons belongs to them on the right of common ownership.

Common ownership of a land plot arises in cases stipulated by legislative acts of the Republic of Kazakhstan, when the plot is not divided(as well as when the owners voluntarily transfer the land plots belonging to them to one plot).

The land plot may be in joint ownership (Article 51), (shared ownership) (joint ownership), or in common ownership, in which the shares of each owner are not defined.

The right of common land use arises on the grounds provided for in Paragraphs 1, 2, 3 of this article.

An independent object of obligations is land rights in common shared ownership of a land plot or in common shared land use, unless otherwise established by legislative acts of the Republic of Kazakhstan.

The procedure for using a land plot in common ownership(common land use) 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 consent 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.

In accordance with paragraphs 6.7 of Article 31 of the law of the Republic of Kazakhstan on housing relations, when registering a condominium object, the following shall be indicated: the total area of an apartment building, including the land plot on which the apartment building is located; the composition of the common property of the condominium object and the size of the share of each apartment, non-residential premises,-area of premises, parking spaces, warehouses.

Registration of a land plot near the house is carried out by a decision of the local executive body of the capital, the city of Republican, regional significance and the district, upon submission of an application by an initiative group consisting of at least two owners of apartments, non-residential premises on the basis of a decision of the meeting. Changes in the composition of the common property of the condominium object and (or) the size of the shares of the owners of apartments, non-residential premises, parking spaces, warehouses in the common property of the condominium object as a result of changes in the total area of apartments and non-residential premises, parking spaces, warehouses on the grounds provided for by the legislation of the Republic of Kazakhstan are subject to state registration."what's the matter?"

In accordance with the requirements of Article 17 of the law of the Republic of Kazakhstan on housing relations, it is stated that "the right of ownership of Housing arises from the moment of its registration with the Registration Authority". In accordance with the requirements of Article 8 of the Civil Code of the Republic of Kazakhstan, "the exercise of civil rights should not violate the rights and interests of other legal entities protected by law.

When exercising the rights granted to them, citizens and legal entities must act honestly, reasonably and fairly, comply with the requirements of the law, the moral principles of society. Actions of citizens and legal entities aimed at causing harm to another person, abuse of the right in other forms, as well as exceeding the right in such a way as to contradict its purpose are not allowed.

In accordance with Article 13 of the Constitution of the Republic of Kazakhstan, everyone has the right to protect their rights and freedoms by all means that do not contradict the law.

Everyone has the right to judicial protection of their rights and freedoms.

According to Article 8 of the Civil Procedure Code of the Republic of Kazakhstan, everyone has the right to apply to the court for the protection of violated or disputed constitutional rights...

Having studied the statement of claim, the court considers that the statement of claim is subject to satisfaction on the following grounds.

As it turned out from the materials of the case, in the documents establishing the right of ownership submitted by the plaintiff to the court, in fact, the land belonging to the plaintiff himself is written that the right of private ownership is common equity. 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.

It was proved during a field court session on 13.10.2023 that since the plaintiff's apartment is located at the end of the courtyard, the exit to the street passes through the courtyard belonging to 1.2 apartments. During the inspection of the object located at the address: Almaty, Nauryzbay district, Karagaily district, M. Tatimov STR., House 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.), the construction of a residential building (litera1), a roof (Litera) was established.

According to the information provided by the branch of the State Corporation Nao" government for citizens " in Almaty on November 21, 2023 № ZHT-2023 02322088 east number, the area of land belonging to M. Tatimova Street 79 is 0.1140, including the share size of the land plot:

- 0.0560 ha Ma belongs to Kulsunkan Abdubaitovna (3 apartments,

-0,0110 hectares belong to CA ACNA (2 apartments) ,

-0,0470 hectares are listed as belonging to Halimsapieva Saniyam Amraevna (1 apartment).

Defendant CA A. K. illegally built Foundation and fenced yard condominium land without any documents without a decision of the competent authorities and without registration with the registration authorities in accordance with the procedure established by a special law.

That is, the plaintiff walks through the courtyard, which belongs to 1.2 apartments, to get out into the street, and therefore considers 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.

Part of the resolution: Kulsunkan, guided by articles 223-226 of the Civil Procedure Code of the Republic of Kazakhstan, the court decided: Abdubaytovna Ma's claim - to be satisfied. To oblige the owner of 2 apartments in the house 79 Makash Tatimov STR., Nauryzbay district, Karagaily microdistrict, Almaty, to remove obstacles and prevent the defendant from entering and leaving the house with the plaintiff's family by demolishing an independently built structure and fence located on the ACO land plot.

November 18, 2024 No. 7599-24-00-2A/10775 the board of the Almaty city court for civil cases under the chairmanship of S. S. Abdigalimov, as part of judges zh.a. Akhanova and K. E. Kalekeeva, plaintiff K. A. M , his representative Z. B. , defendant A. K. O, with the participation of his representative G. T. Sarzhanov, at an open court session in the courthouse via mobile video communication, the plaintiff in the electronic case K A M defendant a K O considered the civil case filed with the appeal of the defendant to the decision of the Nauryzbay District Court of Almaty dated August 08, 2024, issued on the claim to eliminate obstacles by destroying an independently built structure and fence, obliging the defendant not to interfere with the entry and exit of the plaintiff's family,

On the basis of these, guided by subparagraph 1) of Article 424, subparagraph 1) of Article 425 and articles 426, 431 of the code of Civil Procedure, the judicial board decided: leave the decision of the Nauryzbay District Court of Almaty as of August 08, 2024 unchanged, leave the appeal of the defendant A. K. O dismissed. The resolution comes into legal force from the moment of its promulgation.

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