Eviction of citizens from their homes with the provision of other housing

According to paragraph 3 of Article 26 of the Constitution of the Republic of Kazakhstan, no one can be deprived of their property, except by a court decision. Compulsory alienation of property for state needs in exceptional cases provided for by law may be carried out on condition of its equivalent compensation.

In accordance with Article 29 of the Law of the Republic of Kazakhstan "On Housing Relations", in case of compulsory termination of ownership of a dwelling during the requisition or compulsory alienation of the land plot on which the house is located for state needs, the owner must be provided with the following information::

1) monetary compensation paid to the owner before the termination of ownership, including the market values of the dwelling and land plot, as well as full compensation for losses caused to the owner;

2) a well-maintained dwelling (apartment or apartment building) in the property;

3) the return of the requisitioned dwelling after the termination of the emergency situations that caused the requisition, with full compensation to the owner of the losses caused by the requisition.

In case of compulsory termination of the right of ownership of a dwelling in connection with the demolition of an emergency dwelling that threatens to collapse (collapse), a dwelling from the state housing stock is provided.

104 of the above-mentioned law, it follows that in the case of major repairs of an apartment building from the state housing stock, when repairs cannot be carried out without evicting the tenants (tenant), the landlord is obliged to provide the tenant and family members with another dwelling for the duration of the overhaul, without terminating the lease agreement for the premises being repaired.

In case of eviction without provision of another suitable dwelling from the state housing stock and dwellings rented by a local executive body in a private housing stock, minor children left without parental care are provided with another habitable dwelling.

The provision of other housing is provided by the legal entity that submitted the eviction request.

According to Article 105 of the above-mentioned Law, the contract (sublease) of a dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock may be terminated, and the tenant (sublease) evicted with the provision of another comfortable dwelling in the following cases::

1) if the dwelling house (residential building) in which the dwelling is located is subject to demolition in connection with the compulsory alienation of the land plot for state needs;

2) if an apartment building (residential building) is subject to conversion into a non-residential building due to its unsuitability for further residence;

3) if the dwelling is in danger of collapse (collapse);

4) significant changes in living conditions as a result of major housing repairs (paragraphs 2 and 3 of Article 91 of this Law);

5) recognition of a tenancy agreement (sublease) of a dwelling as invalid on the grounds provided for in paragraph 2 of Article 108 of this Law.

The comfortable housing provided in place of the vacated one must meet the requirements and conditions of Articles 75 and 76, paragraphs 2, 3, 4 of Article 106 of this Law.

If the tenant occupied more than one room, he must be provided with a separate dwelling consisting of the same number of rooms, if the tenant had excess space, the dwelling is provided in accordance with the norms provided for in paragraph 1 of Article 75 of this Law, and the tenant or the person living with him who is entitled to additional space, taking into account the right for an additional area.

Citizens who have been living in demolished housing for at least fifteen years, if they wish, are provided with other comfortable housing in residential buildings built on or near the demolished buildings.

Prior to the provision of such housing, these citizens are provided with temporary housing, suitable for habitation, located within the boundaries of this locality and meeting sanitary and epidemiological and technical requirements.

For example, the decision of the Almaty District Court of Astana dated 01.09.2015 for No. 2-9538/15 satisfied the claim of the Akimat of Astana to Freiman A.R., Freiman A.F. and Volchenko G.G. on termination of the lease and eviction agreement, with the provision of other housing. The lease agreement for housing from the state housing fund No. 211 dated 04.12.2007, concluded between the State Institution "Department of Housing of Astana" and Freiman A.R., Freiman A.F., for apartment No. 16, located at 66 Kenesary Street, Astana, was terminated.

The defendants were evicted from the apartment to be requisitioned, with the provision of Freiman A.R., Freiman A.F. other rental housing in the form of studio apartment No. 3, with a total area of 38.5 sq.m., located at 2 E10 St., Astana. As follows from the court's decision, the plaintiff, the Mayor's Office of Astana, justified the claim by saying that the house in which the defendants live is an emergency.

The Government of the Republic of Kazakhstan adopted Resolution No. 728 dated 06/28/2014 "On approval of the Affordable Housing 2020 Program". Pursuant to the above-mentioned resolution, the plaintiff carried out work on the relocation of citizens from the emergency house No. 66 on Kenesary Street in Astana. The defendants were asked to voluntarily vacate the apartment and move into a comfortable apartment. However, the defendants refused this offer.

According to the housing lease agreement from the state fund No. 211 dated 04.12.2007, signed by the Department of Housing of Astana, the landlord and Freiman A.R., the tenant, and his family members, it follows that the latter were provided with apartment No. 16, with a usable area of 19.8 sq.m., at 66 Kenesary St., Astana. The term of the agreement is specified indefinitely.

The court found that Astana Kurylyservice LLP conducted an inspection of a number of residential buildings, including the house where the defendants live, in order to determine the physical wear and technical condition of residential buildings.

According to the technical conclusion, the physical deterioration of the aforementioned apartment building built in 1961 amounted to 78% and the further operation of the apartment building poses a threat to the safe functioning of people.

The protocol of the Interdepartmental Commission on the recognition of residential buildings and structures as emergency under the Mayor's Office of Astana dated 12.04.2013 recommended recognizing House No. 66 at the address: Astana, Kenesary St.

Resolution of the Government of the Republic of Kazakhstan No. 728 dated 06/28/2014 approved the program for the development of regions until 2020. The program provides for the implementation of pilot projects for the demolition of emergency housing in Astana. The duty, in accordance with the procedure established by law, within the framework of a local emergency, to seize and vacate land plots is assigned to the Akimat of Astana, which provides owners of emergency housing with new apartments of equivalent size, instead of demolished housing, but not less than a one-room apartment.

Subsequently, pursuant to this resolution of the Government of the Republic of Kazakhstan, the Akimat of Astana issued Resolution No. 197-497 dated 08.04.2015 "On the compulsory alienation of land plots by way of requisition".

By virtue of article 2 of Article 38 of the Law of the Republic of Kazakhstan "On Housing Relations", the requisition of a dwelling is the forced removal of a dwelling from the owner in emergency situations by decision of state bodies in accordance with the procedure established by legislative acts of the Republic of Kazakhstan, with payment of the cost of the seized dwelling or other types of compensation that do not contradict legislative acts of the Republic of Kazakhstan.

Article 1 of the Law of the Republic of Kazakhstan "On Natural and Man-made Emergencies" defines man-made emergencies as emergencies caused by industrial, transport and other accidents, fires (explosions), accidents involving the release (threat of release) of highly toxic, radioactive and biologically dangerous substances, sudden collapse of buildings and structures, dam breakthroughs, accidents at electric power and life support communication systems, sewage treatment plants; and emergency prevention is a set of measures carried out in advance and aimed at minimizing the risk of emergencies, preserving human health and life, and reducing damage and material losses.

According to paragraph 2 of Article 40 of the Law of the Republic of Kazakhstan "On State Property", requisition is carried out on the basis of decisions of local executive bodies of the regions and the capital.

In accordance with paragraph 3 of Article 25 of the Law of the Republic of Kazakhstan "On Housing Relations", the lease agreement may be terminated prematurely at the request of the landlord if the employer fails to comply with the terms of the lease agreement, as well as if there are valid unforeseen circumstances or on the grounds provided for in paragraphs 1)-5) of Article 107 of this Law.

In this case, the above-mentioned circumstance is the basis for termination of the employment contract. The mechanism for providing comfortable housing to owners of houses demolished under the regional development program until 2020 is provided for by the program itself, approved by the decree of the Government of the Republic of Kazakhstan.

According to this program, it is planned to provide residents with apartments in new buildings of equivalent size, instead of demolished housing, but not less than a studio apartment.

By virtue of article 106 of the Law of the Republic of Kazakhstan "On Housing Relations", other housing provided to citizens in connection with eviction from the state housing stock must meet the requirements of Articles 75 and 76 of this Law and cannot be smaller than the size occupied by the evicted.

Thus, the court, considering that the defendants' residence in the above-mentioned house poses a threat to their lives, since in the event of a collapse, destruction of the house, the consequences can lead to the death of people and the destruction of their property, came to the correct conclusion about satisfying the claim of the akimat for the termination of the lease agreement and the eviction of the defendants.

 

By the decision of the Almaty District Court of Astana dated 08/19/2015 for No. 2- 8706/15, the claim of the Akimat of Astana – the trustee of the State Institution "Astana City Housing Authority" to Kuznetsova A.A., Abdurakhmanova L.A. on the termination of ownership rights by way of requisition, eviction with the provision of other housing, was partially satisfied.

Ownership of Kuznetsova A., Abdurakhmanova L. for apartment No. 1, located at the address: Astana, Zh.Tarkhana, 19/2, has been discontinued. The defendants Kuznetsova A., Abdurakhmanova L., and all family members were evicted from the apartment, which was subject to requisition and provided to the owners as compensation for the former housing of a three-room apartment with an area of at least 53.1 square meters.m. The claim for the provision of two–room apartment No. 117, located at 2 E10 St., Astana, was refused.

A state duty in the amount of 991 tenge per person was collected from the defendants to the state revenue. As follows from the descriptive part of the court's decision, the claims of the claim are motivated by the fact that the house in which the defendants live is an emergency. Akimat offered the apartment owners a comfortable apartment, but they refused this offer.

In accordance with Article 249 of the Civil Code of the Republic of Kazakhstan, the right of ownership is terminated when the owner alienates his property to other persons, the owner renounces the right of ownership, the death or destruction of property and the loss of ownership of property in other cases provided for by legislative acts.

According to the data of the State Institution "Department of Justice of Astana", the defendants, on the basis of a purchase and sale agreement dated July 28, 2007, registered the right of common shared ownership of a three-room apartment No. 1 with a usable area of 53.10 square meters, located at the address: Astana, Zh Street.Tarkhana, house 19/2,. According to the technical conclusion, the physical deterioration of an apartment building built in 1961 was 66%, which corresponds to the category of "dilapidated".

The continued operation of the apartment building posed a threat to the safe functioning of people. On 12.04.2013, the Interdepartmental Commission on the recognition of residential buildings and structures as emergency under the Mayor's Office of Astana recommended recognizing the house in which the defendants live as emergency.

The above circumstances indicate that the apartment building is dilapidated and poses a threat to human life. The Court of First instance, taking into account the above circumstances, ruled to satisfy the claim for termination of the defendants' ownership of apartment No. 1, located at the address: Astana, Zh Street.19/2 Tarkhana, with the eviction of the defendants and all persons living together from the apartment, providing them with an equivalent three-room apartment with an area of at least 53.1 square meters as compensation for their former housing.

By the decision of the Court of Appeal dated 10/23/2015 for No. 2a-5047, the above-mentioned court decision was left unchanged, the operative part of the decision was set out in the following wording: "to evict Kuznetsova A.A., Abdurakhmanova L.A., with all family members from apartment No. 1 located at the address: Astana, Zh.Tarkhana, house 19/2, with the provision of other housing in the form of a two-room apartment No. 117, located at 2 E 10 Street, Astana.

Exclude from the court's decision the instruction to provide the owners with a three-room apartment with an area of at least 53.1 sq.m. as compensation for their former housing."

The Appellate Judicial Board concluded that the court's conclusion on the eviction of the defendants and the provision of an equivalent three-room apartment with an area of at least 53.1 square meters as compensation for their former housing did not comply with the established circumstances of the case and the requirements of the Law.

The proposed apartment as compensation for housing is a two-room comfortable apartment with a living area of 26.5 sq.m., with a total area of 53.8 sq.m., that is, more in area than the demolished housing.

             A similar decision was made in another case, so by the decision of the Almaty District Court of Astana dated 05.08.2015 for No. 2-9975/15, the claim of the Akimat of Astana against Kiktenko L.A., Kiktenko S.S., Kiktenko R.S., Kiktenko S.N. on the compulsory termination of ownership of housing and eviction with the provision of other housing was partially satisfied..

The right of ownership of the defendants in respect of the apartment located at 66 Kenesary Street, 7, Astana, was forcibly terminated. The defendants were evicted from the apartment with the provision of other housing in return, received as compensation for their former home, at the address of Astana, E10 St., 2 sq. 184. A state fee was collected from the defendants to the state income.

The counterclaim of the defendants against the Akimat of Astana city for the obligation to provide a commensurate apartment was left without satisfaction. The analysis of articles 104-106 of the Law of the Republic of Kazakhstan "On Housing Relations", in relation to the disputed case, also indicates the court's compliance with the requirements contained therein, both in terms of the grounds for filing a claim and in terms of providing other comfortable housing.

The essence of the dispute between the parties to such disputes is which apartments are to be provided to the defendants upon their eviction.

In resolving this issue, the courts came to the correct conclusion that the legislation does not provide for the provision of apartments with the same number of rooms as in emergency housing, but establishes that apartments of equivalent size should be provided.

At the same time, the court correctly stated that such provision of apartments should also take into account other circumstances stipulated by housing legislation, as well as exceptional circumstances affecting the situation of tenants, that is, the provision of such apartments should not worsen the housing situation of the evicted persons.

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