Forcing the suspension of construction and installation work and the dismantling of buildings

A claim for recognition of the right to unauthorized construction is considered in a claim procedure, since the interested person applies for the protection of a violated or disputed right or legitimate interest by resolving a dispute over the right.

Paragraph 11 of the regulatory decree "On certain issues of dispute resolution related to the protection of home Ownership" provides comprehensive explanations on this issue.

Thus, claims for recognition of the right to unauthorized construction are filed and considered by the courts in all cases in the claim proceedings.

example:

          The State Institution "Management of Control and Quality of the Urban Environment of Astana" filed a lawsuit against LLP "S" with a claim for forcing the suspension of construction and installation work, for the dismantling of buildings.

In relation to LLP "C", an unscheduled inspection was carried out at the Multi-apartment residential complex "W", located at the address: Astana city, "Yesil" district. Based on the results of the audit, order No. 326 dated July 28, 2022 was issued.

The claim is motivated by the fact that the requirements of the regulation were not fulfilled by the developer, the defendant was repeatedly brought to administrative responsibility for construction and installation work without appropriate permits and title documents for built-up land.

At the same time, the construction of the facility has begun on a land plot owned by a third party.

          By the decision of the Council of Economic and Social Council of Astana dated October 28, 2022, the claim was settled. It was decided to oblige LLP "C" to suspend all construction and installation work on the Multi-apartment residential complex "W".

To oblige LLP "S" to dismantle the erected buildings at the specified facility. The Court, referring to Article 17 of the Law on Architecture, pointed out that violations of the norms and requirements (conditions, rules, restrictions) established by the legislation on architectural, urban planning and construction activities committed by its subjects entail liability provided for by the laws of the Republic of Kazakhstan.

These violations include unauthorized construction, as well as changes in the architectural appearance, redevelopment (re-equipment, redevelopment) of buildings, individual rooms and (or) parts of the building.

The court found that the construction of the facility by the developer was carried out with gross violations of the current legislation, which was not disputed by 26 representatives of the defendant. Work was carried out on the site without a registered notification of the start of construction and renovation work in the authorized body in violation of paragraph 12 of Article 68 of the Law on Architecture, there is no corresponding right to a land plot.

The instruction of the authorized state body dated July 28, 2022 No. 326 was not executed by the developer, as a result, protocols on administrative offenses were drawn up in relation to LLP "C" under Articles 463, 321, 319 of the Administrative Code.

Along with this, by the resolutions of the SMAS of Astana city that entered into force on August 22, 2022, the defendant was brought to administrative responsibility under Article 319 of the Administrative Code (illegal construction of industrial, residential, economic, hydraulic (water management) or household facilities without the appropriate right to land) with the imposition of a fine in the amount of 107,205 tenge without forced demolition, dated August 31, 2022, under part 1 of Article 463 of the Administrative Code (engaging in entrepreneurial or other activities, as well as performing actions (operations) without registration, permission, as well as failure to notify in cases where registration, permission, and notification are mandatory, if these actions do not contain signs of a criminal offense) with a fine of 85,764 tenge without forced demolition.

By the resolution of the Judicial Board for Civil Cases of the Astana City Court dated December 21, 2022, the court's decision remained unchanged.

Another example:

          In another case, the Department of Control and Quality of the Urban Environment of Astana appealed to the court with a claim against T LLP for the obligation to comply with the requirements of the regulation.

The plaintiff conducted an unscheduled inspection of "T" LLP at the "Summer Cafe" facility, attached to non-residential building No. 3, located at the address: Astana city, "Yesil" district.

The audit revealed violations of the requirements stipulated by state regulations and other regulatory legal acts in the field of architectural, urban planning and construction activities.

Violations of the requirements of the legislation by the defendant have been established by the decisions of the SMAS that have entered into force. At the same time, it was established that the construction of the facility began on a land plot owned by a third party.

On August 16, 2022, the plaintiff issued an order to LLP to eliminate violations, namely: to send a coupon for notification of the start of construction and installation work; to receive an appropriate title document for the land plot (site or highway for construction) or the decision of the executive body to provide it; to approve the design and estimate documentation; to receive a positive expert opinion to ensure the construction of the facility with the support of technical and copyright supervision; suspend the operation of the summer cafe until the approval of the acceptance certificate for the constructed facility. By the decision of the Council of Europe on December 26, 2022, the claim was satisfied.

It was decided to oblige "T" LLP to comply with the requirements of the regulation on the elimination of violations dated August 16, 2022, namely: to send a coupon for notification of the start of construction and installation work; to obtain an appropriate title document for the land plot (site or highway for construction) or the decision of the executive body to provide it; to approve the design and estimate documentation; to obtain a positive expert opinion on the projects; to ensure the construction of the facility with the support of technical and copyright supervision; suspend the operation of the summer cafe until the approval of the acceptance certificate for the constructed facility.

Another example:

Cities with active construction are characterized by disputes related to unauthorized construction, created without obtaining a permit (with a deviation from the design documentation).

The Department of Control and Quality of the Urban Environment of Astana has filed a lawsuit against E LLP to enforce Order No. 671 dated December 30, 2022 by suspending construction and installation work on the Multi-apartment Residential Complex with built-in facilities and parking.

The plaintiff conducted an unscheduled inspection, registered in accordance with the established procedure in the Office of the Committee on Legal Statistics and Special Accounts for the City of Astana dated December 28, 2022 for No. 2271000002200032/00620, in respect of "E" LLP for the "Multi-apartment residential complex with built-in facilities and parking" located at the address: Astana city, Almaty district.

According to the results of the audit, the Department found that a positive conclusion was received on December 26, 2022, No. EXLEAD0032/22 ("Chamber of Expert Organizations") for blocks 1 and 2, according to which the facility consists of 5 floors, however, the construction of the frame was carried out at the level of the 6th and 7th floors.

By the decision of the Council of Economic and Social Council of May 16, 2023, the claim was satisfied.

It was decided to oblige E LLP to suspend construction and installation work on the Multi-apartment Residential Complex with built-in facilities and Parking, located at the address: Astana city, Almaty district, until the execution of Regulation No. 671 dated December 30, 2022 by sending a notification of the start of construction and installation work and obtaining the appropriate right to the land in the designated area for the construction of the facility.

According to the court's conclusions, construction above 6 floors should be carried out on the basis of design documentation that has passed state expertise in accordance with the procedure established by law.

Another example:

          The State Institution "Department of Urban Planning Control of Almaty city" filed a lawsuit against A.V. for invalidation of the act of acceptance of the facility into operation, recognition of unauthorized construction and demolition of facilities.

The following persons are involved in the case as third parties: KSU "Department of Urban Planning and Urban Studies of Almaty city", individuals who have concluded preliminary purchase and sale agreements for the purchase of housing under construction. The claim was based on the fact that the defendant built a residential complex consisting of two facilities instead of an individual residential building on a land plot without appropriate permits.

The Rules of Building Organization adopted in accordance with subparagraph 23-14) of Article 20 of the Law on Architecture regulate the order of building on the territory of the settlement, and paragraph 22 of the Rules of Building Organization provides for the phased implementation of construction projects.

The defendant A.V., in violation of the requirements of the Rules of Building Organization, carried out construction and installation work in an economic manner without notification of the start of construction and installation work, without design estimates, respectively, without a positive expert opinion on the project, without accompanying technical and author's supervision.

The authorized body in the field of urban planning control has drawn up an administrative protocol against the defendant under part 1 of Article 316 of the Administrative Code.

The order to eliminate the identified violations with the following requirements: to suspend construction and installation work and bring the documentation of the facility into compliance was not executed, as a result of which the defendant was brought to administrative responsibility under Article 462 of the Administrative Code.

At the same time, the defendant did not provide sufficient evidence that the preservation of the building would not entail a violation of the rights and protected interests of others, or would not pose a threat to the life and health of citizens.

The conclusion on the technical condition of the construction site available in the case file does not confirm the reliability and stability of the building, since the assessment is given to an individual residential building, and not to a residential complex consisting of two facilities.

An assessment is given of the arguments of the defendant and third parties who believed that, by virtue of paragraph 22 of the Rules of Building Organization, the construction of technically simple facilities of the third level of responsibility, to which, in their opinion, the constructed facility belongs, does not require the development and examination of pre-design and design documentation.

Thus, it was established that the constructed facilities consist of a basement and three ground floors, belong to the type of townhouses.

Taking into account the stated circumstances, GASK's claim is satisfied.

Another example:

          GASKIN's claim against M.A. for the demolition of an unauthorized building found the correct resolution only in the court of cassation. The local courts rejected the claim, arguing that the plaintiff had not provided evidence indicating that the facility had been built in violation of applicable building codes, as well as a threat to the life and health of citizens, and a violation of the legally protected rights and interests of third parties.

In accordance with article 24-2 of the Law on Architecture, the design of objects of architectural, urban planning and construction activities must ensure the safety of structures for human life and health and the environment.

When designing structures, all possible risks to human life and health and the environment must be identified and taken into account at all stages of the life cycle, including during normal operation, emergency situations, suspected violations during construction and installation work and unacceptable construction.

During construction and installation work, the developer is obliged to carry out the full range of safety measures defined in the design documentation, and to ensure the possibility of monitoring and supervising their implementation at various stages of construction of the structure.

The above requirements of the law were not fulfilled by the defendant. In this case, a violation by the developer of paragraph 22 of the Rules of Building Organization was established, namely: non-compliance with the stages of passage of licensing procedures. As it was established, the defendant, without approved design and estimate documentation, which was duly examined, without supervision of the author and technical supervision, erected a 3-storey apartment building with a basement and an operational roof.

The facts of violations are confirmed by resolutions on bringing the defendant to administrative responsibility under part 1 of Articles 316 and 321 of the Administrative Code.

          Justification:

The above examples clearly show what issues arise when considering cases of unauthorized construction erected by a person in whose lawful use the land plot is located.

In this regard, it should be noted that, according to paragraph 2 of article 68 of the Law on Architecture, a customer intending to construct an object is required, in accordance with the land legislation of the Republic of Kazakhstan, to obtain a decision from the local executive authorities of districts (cities) 30 on granting the appropriate right to land.

If the customer has the appropriate right to land and a functional area in accordance with the approved detailed planning project for the construction of the facility, an additional decision from the local executive authorities of the districts (cities) is not required.

A person who has carried out an unauthorized construction does not acquire ownership rights to it. It does not have the right to dispose of the building - to sell, donate, lease, or make other transactions.

According to article 34-2 of the Law on Architecture, the construction customer is obliged to provide the facility with all necessary permits provided for by the legislation of the Republic of Kazakhstan.

By virtue of Article 188 of the Civil Code, the right of ownership is the right of a subject, recognized and protected by legislative acts, to own, use and dispose of his property at his discretion.

The exercise by the owner of his powers should not violate the rights and legally protected interests of other persons and the State. The owner is obliged to take measures to prevent damage to the health of citizens and the environment that may be caused during the exercise of his rights.

According to article 65 of the Land Code, land owners and land users are required to: 6) when carrying out economic and other activities on a land plot, observe construction, environmental, sanitary and hygienic and other special requirements (norms, rules, regulations).

Articles 68, 70 of the Law on Architecture provide that at the appropriate stages of the construction process, the procedures must be followed and the requirements set out in this article must be met.

The norms and regulations establishing requirements for subjects of architectural, urban planning and construction activities in ensuring the proper quality of construction and construction products are regulated by the Civil Code and apply to all types of three-dimensional, planar and linear capital structures (structures, buildings and their complexes, communications), including related technological and engineering equipment, as well as all types of work (services) related to their design, construction, manufacture (production) of building materials, products and structures, regardless of the purpose of the construction products (facilities).

Throughout the entire period of construction (conservation) and service life (operation) of facilities, it is mandatory for the owners (customers, owners, tenants, tenants) to ensure the following main characteristics of their quality: safety during construction and operation, including maintenance and maintenance.

The circle of persons involved in the case.

          Claims for recognition of ownership of an unauthorized building are considered by the courts in the order of claim proceedings and submitted to the local executive body. The defendants in such cases should be the akims of the relevant administrative-territorial unit, who head the local executive body. Depending on the category of the dispute, such claims may be filed against the owner of the land plot or against the developer (the person who erected the unauthorized building).

          It should be borne in mind that if the unauthorized construction was created by contractors, the defendant will be the customer as the person on whose instructions the unauthorized construction was carried out.

In each specific case, the composition of third parties whose participation is necessary for the proper resolution of the case is determined by the court by the content of the subject matter and grounds of the plaintiff's claims, the defendant's objections and the laws to be applied.

It should be borne in mind that the decision taken in the case may affect the scope of the rights and obligations of these persons.

The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.

Paragraph 11 of the regulatory decree "On certain issues of dispute resolution related to the protection of Home Ownership" clarifies that a claim for recognition of ownership of an unauthorized dwelling is brought against a local executive body.

The plaintiffs mostly correctly indicated the defendant, and at the same time, there are lawsuits when the plaintiff's claims for recognition of the right to unauthorized construction are made against an improper defendant.

Article 50 of the CPC provides that in the event of a claim against an improper defendant, the court, in order to prepare the case for trial, explains to the plaintiff his right to file an application for replacing the improper defendant with a proper one.

The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.

Jurisdiction

In accordance with Part 1 of Article 31 of the CPC, claims for rights to land plots, buildings, premises, structures, other objects firmly connected with land (real estate) and others are filed at the location of these objects.

That is, disputes related to the recognition of ownership of an unauthorized building are considered at the location of the disputed property. If one of the parties to the case is a citizen, then such claims are considered by the district courts.

In cases where the parties to the case are individuals engaged in individual business activities without forming a legal entity and legal entities, the claim is subject to the jurisdiction of specialized economic courts in accordance with part 1 of Article 27 of the CPC.

When determining the jurisdiction of cases related to the application of the provisions of Article 244 of the Civil Code, the courts must take into account the subject matter of the parties to the dispute and the nature of legal relations in their entirety.

In order to become an object of relations regulated by Article 244 of the Civil Code, a building made by a person must be unauthorized.

When accepting a claim for recognition of ownership of an unauthorized non-residential building, as well as a claim by an authorized body for the demolition of such a building, questions often arise about jurisdiction when the plaintiffs in the first case or the defendants in the second case are individuals who are not registered as an individual entrepreneur, but the disputed property is being used or will be used. for business purposes.

Thus, in the absence of state registration of an individual as an individual entrepreneur, a dispute involving him is subject to the jurisdiction of a court of general jurisdiction.

The fact that the subject of the claim is an industrial premises that can be used for entrepreneurial activities does not affect the jurisdiction of the dispute, since the law does not restrict the right of individuals to own any property, including non-residential/industrial premises.

Thus, under the above circumstances, there are no grounds for refusing to accept a claim for recognition of ownership rights or for the demolition of such an unauthorized building by a court of general jurisdiction.

State duty

In accordance with Article 607 of the Tax Code, the state duty is a mandatory payment levied for the commission of legally significant actions and (or) the issuance of documents by authorized state bodies or officials.

By virtue of Article 149 of the CPC, a document confirming payment of the state fee is attached to the statement of claim.

Subparagraph 11) of Part 1 of Article 104 of the CPC stipulates that in claims for ownership of immovable property, the price of the claim is determined by the market value of such objects at their locations on the day of filing the claim.

Civil law disputes over the ownership of unauthorized buildings relate to property-related claims, respectively, subject to assessment. The disputed object is tangible and has a monetary value, therefore, its price is determined by market value.

According to subparagraph 1) of paragraph 1 of Article 610 of the Tax Code, unless otherwise provided by this paragraph, a state fee is charged on property claims: 1 percent from individuals and 3 percent from legal entities of the amount of the claim.

The state fee for filing a claim for recognition of ownership of an unauthorized building is payable based on the value of the property, with documents on its market value attached to the application (assessment report, information certificates on the market value of immovable property).

The rules of Part 1 of Article 109 of the CPC on the distribution of court costs with their award to the party in whose favor the decision was made do not apply to the category of cases on claims filed against a local executive body for recognition of ownership of an unauthorized building, and courts should not recover from local executive bodies in favor of plaintiffs the costs of paying state fees.

It should be assumed that the plaintiff has chosen judicial protection of his rights, while the defendant in such cases does not violate the plaintiff's material rights.

Earlier, the Supreme Court provided clarifications on this issue, including in the regulatory decree "On the application by courts of the Republic of Kazakhstan of legislation on court costs in civil cases."

These clarifications are reflected in the generalizations of the regions, which may indicate their widespread use in judicial practice and the absence of difficulties for the courts in this matter.

At the same time, there are cases when courts have accepted lawsuits and considered cases without assessing the market value of a real estate object or with only the title page of the real estate valuation report, while its research part contains approaches and methods, description, technical and design characteristics and other information about the research object in the materials. the case was missing.

The absence of a document confirming the market value of the constructed facility prevents the determination of the amount of the state fee to be paid when filing a claim.

Regulatory and legal framework

The main regulatory legal acts regulating the recognition of the right to unauthorized construction and to be applied in the consideration of cases in 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 Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code);

- The Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter – the Law on Architecture);

- The Law of the Republic of Kazakhstan "On Local Government in the Republic of Kazakhstan" (hereinafter – the Law on Local Government);

- The Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter referred to as the Administrative Code);

- The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (the Tax Code) (hereinafter referred to as the Tax Code);

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of legislation on the right of ownership of housing" dated July 9, 1999 No. 10 (hereinafter referred to as the regulatory resolution "On certain issues of the application of legislation on the right of ownership of housing");

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of dispute Resolution related to the protection of Ownership of housing" dated July 16, 2007 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of Dispute Resolution related to the protection of Ownership of housing");

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of land legislation by Courts" dated July 16, 2007 No. 6 (hereinafter referred to as the regulatory resolution "On certain issues of the application of land legislation by Courts");

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by Courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9 (hereinafter referred to as the regulatory resolution "On the application by Courts of the Republic of Kazakhstan of legislation on court costs in civil cases");

- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application of Inheritance legislation by Courts" dated June 29, 2009 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of the application of Inheritance legislation by Courts");

- Rules for the organization of construction and the passage of licensing procedures in the field of construction, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 No. 750 (hereinafter referred to as the Rules for the Organization of construction)

- SNiP RK, regulating relations in the field of architecture, urban planning and construction. When considering disputes, the regulatory legal acts in force at the time of the emergence of the relevant legal relationship are subject to application.

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