Establishing the fact of availability of documents confirming the right to own, use and (or) dispose of real estate objects

By the decision of the interdistrict Court for Civil Cases of Astana city dated May 22, 2025, the application of S.L.V., S.V.V., S.M.V. on establishing the fact of ownership of the title document was satisfied.

As established by the court, on the basis of the apartment (house) privatization agreement dated December 22, 1993, No. 502, issued by the Commission for the Implementation of the coupon mechanism of POE and E Tselinenergo, apartment No. 51 in building 10, Vostochny microdistrict in Akmola (now Astana city, Almaty district, 30 Shakarim Kudaiberdiuly Avenue, apartment No. 51, next is the disputed apartment), purchased by S.V.V. (the buyer) and his family members: S.L.V. (spouse), S.V.V. and S.M.V. (children).

In the contract, the data of these persons is not given in full, but only their initials, capital letters of names and patronymics are spelled out.

According to the information of the NGO "Government for Citizens State Corporation" dated May 14, 2025, the disputed apartment was registered with the above-mentioned persons on the right of common ownership. There are no encumbrances.

The applicants appealed to the court with a demand to establish the fact that the above-mentioned document belonged to them.

According to the documents submitted to the court, it can be seen that the applicants' first name and patronymic were and are listed as L.V., V.V.S., M.V.S.

However, their surnames and initials are indicated in the above-mentioned privatization agreement.

To date, POE and E Tselinenergo, JSC Tselindostroy have been liquidated, respectively, there is no possibility to make changes to it.

The Court found that the establishment of this fact was of legal importance to the applicants. There is no dispute about the law in the case.

The procedure for considering cases of establishing facts of legal significance is regulated by Chapter 32 of the CPC (Articles 305-309).

An application for establishing a fact of legal significance is filed with the court at the applicant's place of residence, with the exception of the availability of documents confirming ownership, use, and/or disposal of immovable property, which is filed with the court at the location of the immovable property.

The application must specify the purpose for which the applicant needs to establish this fact, as well as provide evidence confirming the applicant's inability to obtain proper documents or the inability to recover lost documents.

In accordance with Article 305 of the CPC, the court establishes the facts on which the emergence, modification or termination of personal or property rights of citizens or legal entities depends.

The Court considers cases on establishing facts: 1) kinship relations of persons; 2) finding a dependent person; 3) registration of birth, adoption, marriage, divorce and death; 4) recognition of paternity; 5) ownership of title documents (with the exception of military documents, passports, identity cards and certificates issued by civil registration authorities) to a person, whose first name, patronymic or surname indicated in the document does not match the first name, patronymic or surname of this person on the passport or identity card, or birth certificate; 6) the availability of documents confirming the ownership, use and (or) disposal of immovable property, if the applicant had a title document on the ownership of the property, but it is lost, and the specified fact cannot be established out of court; 7) an accident, if it cannot be confirmed in another manner.;  8) death of a person at a certain time under certain circumstances

9) acceptance of the inheritance and the place of opening of the inheritance, if the person performing the notarial acts is unable to issue a certificate of inheritance rights to the applicant due to the absence or insufficiency of the relevant documents necessary to confirm the fact of taking possession of the inheritance property.

Within the meaning of Part 3 of Article 305 of the CPC, other facts may be established on which the emergence, modification or termination of personal or property rights depends, unless otherwise provided for by legislation.

At the same time, the court does not resolve the dispute about the law, it only establishes the fact, which is the basis for further legal action. The established facts may affect the legal status of a person, the accrual of pensions, benefits, inheritance, etc. If such facts are established, if the necessary legal conditions are in place, the court may make a decision that will become the basis for subsequent legal actions or for the emergence of new legal relations.

Based on the above, it can be concluded that the establishment of facts of legal importance is an important procedure in the legal system, and the courts can accept applications and consider them in a separate proceeding, subject to certain criteria.

These include:

1) facts of legal significance affecting the rights and obligations of persons. This means that their establishment should lead to the emergence, modification or termination of the rights of individuals or legal entities. For example, establishing the fact of paternity may affect a child's right to inheritance or to receive social benefits.;

2) the court only establishes a fact (for example, the fact of birth or mutilation), but does not resolve the issue of the rights or obligations of the parties arising from this fact.;

3) if the applicant is unable to obtain the necessary documents to confirm the fact (for example, the loss of a birth certificate, death of a relative or other reasons) in a different manner, the court may consider the case to establish this fact; if there is no special legislative mechanism to establish the fact, the court has the right to establish the fact in a separate proceeding. This is important because the person must exhaust all other possibilities of documenting the fact.

Features of the proof

In this category of cases, the following facts must be proved:

- evidence confirming the existence of this legal fact (documents, letters, witness statements, etc.);

- certificates from various bodies (RAGS bodies, archives, etc.) about the inability to obtain or restore proper documents certifying a legal fact;

- evidence confirming the legal purpose of establishing this fact.

State duty

In accordance with paragraph 2 of Article 609 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)", the state duty rates are determined in the amount of a multiple of the monthly calculation index established by the law on the Republican Budget and effective on the date of payment of the state duty (hereinafter – MCI), or as a percentage of the amount of the claim., unless otherwise established by Article 610 of this Code.

According to subparagraph 8) of paragraph 1 of Article 610 of the Tax Code, state duty is levied on applications for special claims, applications (complaints) in cases of special proceedings, administrative claims under the Administrative Procedural Procedure Code of the Republic of Kazakhstan, with the exception of those specified in subparagraphs 2), 3), 4) and 13) of this paragraph. in the amount of 0.5 MCI.

The same amount of the state duty rate is established by the Tax Code of the Republic of Kazakhstan dated July 18, 2025.

A study of the cases showed that when submitting applications to the court, applicants correctly pay the state fee at the rate of 50 percent of the MCI amount established by the law on the republican budget and effective on the date of payment of the state fee.

At the same time, in the civil case, according to B.N.'s application for establishing the existence of a document confirming the ownership, use and disposal of immovable property, a payment document confirming the payment of a state fee in the amount of 12,900 tenge was attached to the application, whereas it was necessary to pay 0.5 MCI, that is, 1,846 tenge. When considering the above-mentioned case on the merits, the court did not refund the overpaid state fee (Arshalynsky District Court of Akmola region).

Jurisdiction

According to Article 307 of the CPC, an application for establishing a fact of legal significance is filed with the court at the applicant's place of residence, with the exception of the fact that there are documents confirming the possession, use and (or) disposal of immovable property, which is filed with the court at the location of the immovable property.

In some cases, local courts have noted that at the stage of making statements on cases of establishing a fact of legal significance, judges do not use the integrated information system for information exchange of law enforcement, special state and other bodies of the Republic of Kazakhstan (SIO PSO) in their work.

Thus, by Decree of the President of the Republic of Kazakhstan dated December 28, 2023 No. 424 "On certain issues of the administrative and territorial structure of the Republic of Kazakhstan" it was decided to move the administrative center of the Katon-Karagai district of the East Kazakhstan region from the village of Ulken Naryn to the village of Katon-Karagai of the Katon-Karagai district of the East Kazakhstan region. To form the Ulken Naryn district with the administrative center in the village of Ulken Naryn as part of the East Kazakhstan region by separating from the Katon-Karagai district.

In the examples below, when the applicants, whose place of residence was previously located in the territory of the Katon-Karagai district according to the above Decree, moved to the newly formed Ulken Naryn district, they applied to the Katon-Karagai District Court.

So, M.Z. applied to the court with an application for establishing the fact of family relations.

This statement was accepted by the ruling of the judge of the Katon-Karagai District Court on March 6, 2025, and a civil case was initiated, with a preliminary court hearing scheduled for March 20, 2025.

By the ruling of the judge of the Katon-Karagai District Court dated March 31, 2025, the civil case on M.Z.'s application for establishing the fact of kinship relations was transferred for consideration on the merits to the Ulken Naryn District court under jurisdiction (subparagraph 3) of part 2 of Article 34 of the CPC).

Thus, the application has been in court proceedings for more than one month since its receipt, whereas it can be seen from the application that the applicant indicated his place of residence: Ulken Naryn district, Kokbastau village, therefore, the judge should have returned this application to the judge at the stage of accepting the application on the grounds of subparagraph 2) of part 1 of Article 152 of the CPC.

It should also be noted that the ruling of March 31, 2025 was issued by a judge without holding a court session, not by the composition of the court and not in a conference room, whereas based on the meaning of subparagraph 3) of part 2 of Article 34 of the CPC, the issue of transferring the case to another court is resolved by the court.

In addition, the said ruling dated March 31, 2025 is subject to immediate enforcement, despite the requirements of paragraph 7 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2 "On the application by courts of certain norms of civil procedure legislation." According to this paragraph, in the cases provided for in the sub-paragraphs 1), 3), 4), 5), 6) According to the second part of Article 34 of the CPC, the transfer of a case from the proceedings of one court to the proceedings of another court is carried out on the basis of a court ruling that has entered into legal force.

Refusals to accept applications, refunds

G.V. applied to establish the fact of termination of marital relations since 2013 between V.K. and L.K.

It follows from the contents of the application and the attached documents that G.V. is the heir of the second stage after the death of V.K. and L.K. in connection with which, the establishment of the fact is necessary for him to accept the inheritance after the death of L.K. (L.G.).

By the ruling of the Mamlyutsky District Court of the North Kazakhstan region dated September 25, 2024, G.V. refused to accept the application.

In refusing to accept the application, the court of first instance proceeded from paragraph 12 of Regulatory Decree No. 13, stating that the fact of marital relations, as well as their termination, can be established by the court only to persons who were in such a relationship before 1944, that is, before the Decree of the Presidium of the Supreme Soviet of the USSR dated November 10, 1944.

The Court of Appeal agreed with the court's conclusions.

The applicant A.P. requested to establish the fact of his employment in various organizations in the period from 1979 to 2002 for pension purposes.

By the ruling of the Semeysky City Court of March 24, 2023, the application was returned on the basis of subparagraph 1) of part 1 of Article 152 of the CPC – non-compliance with the pre-trial procedure. The court clarified that the refund does not prevent a second appeal after the violations have been eliminated.

In accordance with paragraph 3 of regulatory Decree No. 13 and paragraph 3 of Article 17 of the Law "On Pension Provision", a citizen must initially apply to the authorized body - the territorial body of the Committee on Labor, Social Protection and Migration - with a request for confirmation of work experience.

The applicant did not provide evidence of such treatment, and therefore, the possibility of settling the issue out of court has not been exhausted.

The courts correctly note the typical mistake of applicants in this category – premature appeal to the court without confirmation of an attempt to resolve the issue with the authorized body. To prevent such returns, it is necessary to document the application to the social protection authorities (NAO GC Government for Citizens) and receive an official refusal or response.

Regulatory legal framework

The normative legal acts regulating these legal relations and subject to application in the consideration of cases of this category are:

-The Constitution of the Republic of Kazakhstan,

- The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code),

- The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC),

- The Administrative Procedural Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APPC),

-The Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the Budget (Tax Code)",

- Social Code of the Republic of Kazakhstan,

-The Labor Code of the Republic of Kazakhstan,

-The Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family" (hereinafter – KBS),

-The Law of the Republic of Kazakhstan "On Notary",

-The Law of the Republic of Kazakhstan "On Veterans",

-The Law of the Republic of Kazakhstan "On rehabilitation of victims of mass political repression",

-The Law of the Republic of Kazakhstan "On State social benefits for disability and age-related loss of Breadwinner in the Republic of Kazakhstan",

-Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 19, 2003 No. 5 "On judicial decision",

-Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 28, 2002 No. 13 "On judicial practice in cases of establishing facts of legal significance" (Regulatory Resolution No. 13),

-Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 13, 2001 No. 21 "On the preparation of civil cases for trial"

-Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated March 20, 2003 No. 2 "On the application by courts of certain norms of civil procedure legislation", etc.

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