Forced eviction from a home
Plaintiffs A.U. and R.U.A. filed a claim for the forced eviction of defendant K.G.P. to the Yenbekshinsky District Court of Shymkent.
By the decision of the Yenbekshinsky District Court of 02.02.2015, the claim was satisfied.
The defendant, K.G.P., was evicted with all family members from an apartment located at 1/1/29 K.S. Street, sq. 6, Shymkent, Enbekshinsky district, without providing other housing. In addition, the defendant was ordered not to transfer the above apartment to other persons.
By the decision of the appellate judicial Board of the South Kazakhstan Regional Court for Civil and Administrative Cases dated 04/16/2015, the decision of the Yenbekshinsky District Court dated 02.02.2015 was changed, the decision regarding the obligation of the defendant K.G. not to transfer the apartment of plaintiffs A.U. And R.U.A. located at the above address to other persons was canceled.
According to Article 188 of the Civil Code of the Republic of Kazakhstan, the right of ownership is the right of a subject, recognized and protected by legislative acts, to own, use and dispose of property belonging to it at its discretion.
260, 264 of the Civil Code of the Republic of Kazakhstan, the owner has the right to claim his property from someone else's illegal possession, the owner has the right to demand the elimination of any violations of his right, even if these violations were not connected with the deprivation of possession.
According to Article 30 of the Law of the Republic of Kazakhstan "On Housing Relations", the plaintiff has the right to demand the eviction of other persons from his property.
According to Part 2 of Article 219 of the Civil Procedure Code of the Republic of Kazakhstan, the court resolves the case within the limits of the requirements stated by the plaintiff.
However, in the final part of the decision of the court of first instance, the defendant was ordered not to transfer the disputed apartment to other persons, i.e. despite the fact that the plaintiffs did not make such a claim, going beyond the stated requirement, the court resolved the issue that was not raised in the statement of claim.
According to art. 65, part 2 of art. 218 of the CPC of the Republic of Kazakhstan, Each party must prove the circumstances to which it refers as the grounds for its claims and objections; the court bases the decision only on the evidence that was examined at the court session.
In the Abaysky district court of Shymkent, H.N. appealed to the defendant H.D.O. with a claim for eviction without providing other housing.
By the decision of the Abai District Court of Shymkent dated 30.03.2015, the plaintiff's claim was satisfied.
By the ruling of the appellate judicial board of the South Kazakhstan Regional Court for Civil and Administrative Cases, the decision of the Abai District Court was overturned and the statement of claim was dismissed by the decision of the board dated 05/14/2015.
The Board found that the plaintiff H.N.A. and the defendant H.D.O. were legally married from 09/14/1991 to 12/9/2011, and have children from their joint marriage: A.Diana, born on 05/02/1994; A.Dastan, born on 12/15/2000; H.A., born on 01/31/2004.
According to the purchase and sale agreement No. 986 dated 22.02.2005, H.N.A., with the consent of his wife H.D., purchased from B.J.E. a land plot located at the address: Shymkent, department. Telman, Nizami St., No. 73 for 8,645,000 tenge received under a bank loan agreement concluded with the Shymkent branch of ATF Bank JSC on 03/01/2005 and registered under No. KR120-2005.
By the decision of the Abai District Court of Shymkent dated 09.12.2011, the marriage, registered on 04.09.1991, was dissolved.
The Court of first instance did not give a legal assessment to the fact that the disputed house is the common property of the spouses. The above circumstances were not taken into account by the court of first instance and, without clarifying the fact that the house with the land plot was acquired during the marriage of the parties, the court made an incorrect conclusion about the satisfaction of the claim.
According to paragraph 1 of Article 223 of the Civil Code of the Republic of Kazakhstan, the property acquired by the spouses during marriage is their joint property, unless the contract between them provides that this property is the shared property of the spouses or belongs to one or in appropriate parts to each of the spouses by right of ownership.
According to paragraphs 1, paragraph 3 of Article 33 of the Code of the Republic of Kazakhstan "On Marriage (Matrimony) and Family", the property acquired by the spouses during marriage (matrimony) is their common joint property. The right to the common property of the spouses also belongs to the spouse who, during the marriage (matrimony), carried out household management, took care of children, or for other valid reasons did not have an independent income. 34 of the Code states that the possession, use and disposal of the common property of the spouses are carried out by mutual consent of the spouses.
38 of the said Code states that when dividing the common property of the spouses and determining the shares in this property, the shares of each spouse are recognized as equal, unless otherwise provided by an agreement between them.
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