Housing disputes change of premises, functional purpose, complete or partial replacement of the internal system of technological and (or) engineering equipment necessary for life support and operation
G. filed a lawsuit against K. for the obligation to stop operating the apartment as a non-residential building and to eliminate violations caused by the redevelopment of the apartment by dismantling the doorways near the adjacent wall, arguing that the defendant converted his apartment into a mini-hotel for hourly customer service and uses it for commercial purposes, in each room I installed the front door to the outside, increased the number of plumbing units. This institution is visited by different people for entertainment purposes, who make noise and disturb her peace. The house is old, the common wall has no sound insulation. The defendant made a doorway from the window opening next to the adjacent common wall. When using this door, noise is created, which worsens the living conditions. The claim was dismissed by the decision of the Abaysky District Court of the Karaganda region dated June 30, 2020. By the resolution of the Judicial Board for Civil Cases of the Karaganda Regional Court dated September 2, 2020, the court's decision remained unchanged. The Judicial Board for Civil Cases of the Supreme Court annulled the judicial acts of local courts and issued a new decision. G. satisfied the statement of claim, K. ordered to stop the operation of the apartment as a non-residential building and eliminate violations caused by the redevelopment of the apartment by dismantling the doorways near the adjacent wall on the following grounds. - It follows from the case file that G. is the owner of apartment No. 1, and K. is the owner of apartment No. 2 in house No. 6 in Ugolny Lane in the city of Abai, Karaganda region (hereinafter referred to as the house). The house is divided by an adjacent wall into two apartments. Each apartment had one entrance door and was used for long-term stays. The defendant's apartment has not been removed from the housing stock.
Housing disputes change of premises, functional purpose, complete or partial replacement of the internal system of technological and (or) engineering equipment necessary for life support and operation
The court of first instance, rejecting the claim, concluded that the plaintiff had not proven the fact of violation of the defendant's exploitation of the apartment. The court of appeal agreed with the above conclusions of the court of first instance, pointing out that the verification of the illegality of redevelopment falls within the competence of government agencies, and in case of violation of legislation in the field of urban planning on the part of the defendant, they have the right not to register the acceptance certificate of the object. In the petition, the applicant stated that this issue had not been established during the consideration of the case, and no documents had been provided indicating the legality and safety of K.'s redevelopment of the apartment. According to subparagraph 2) of paragraph 1 and paragraph 2 of Article 1 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code), the lands of settlements (cities, towns and rural settlements) are used in accordance with their intended purpose. The legal regime of lands is determined based on their belonging to a particular category and permitted use in accordance with the zoning of lands (territories). In accordance with paragraph 4 of Article 8 of the Land Code, the target regime for the use of the territory, defined during the zoning of land, is mandatory for subjects of land relations. According to the General Land Plan of the Abai district, the purpose of the land plot in 6 Ugolny Lane is to maintain an apartment building. In this regard, in order to engage in commercial activities, the purpose of the land plot must be changed in accordance with the procedure established by Article 49-1 of the Land Code. From the copies of the residential building purchase and sale agreement and ownership of the land plot dated April 2, 2018, as well as the acceptance certificate No. 209 of the constructed facility dated June 5, 2018, it follows that the facility was commissioned as an apartment building. According to sub–paragraphs 24), 27) and 28) of Article 2 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law): apartment – a separate dwelling, which is part of an apartment building, intended and used for permanent residence; dwelling – a separate residential unit (individual house, apartment, dorm room), intended and used for permanent residence, meets the established building, sanitary, environmental, fire and other mandatory standards and regulations; non-residential premises – a separate interior space in an apartment building that complies with construction, sanitary, environmental, fire and other mandatory standards and regulations, provided for at the project stage, the boundaries of which are the internal surfaces of walls, floors and ceilings (interstory ceilings), unless otherwise provided by the legislation of the Republic of Kazakhstan, used for purposes other than permanent residence (office, shop, cafe, hotel, hostel and other public service facilities) and individually (separately) owned, except for the common property of the condominium facility.
Housing disputes change of premises, functional purpose, complete or partial replacement of the internal system of technological and (or) engineering equipment necessary for life support and operation
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. In this case, when renting housing, the defendant lives separately, does not ensure the security of the apartment, the guests make noise, the iron door, converted from a window opening, is located next to the adjacent wall and the plaintiff's window, constantly knocks when closing, which violates the living conditions of the latter. Thus, renting out a dwelling that does not involve long-term residence of persons in it means using it as non-residential premises, which contradicts the activities stated by the defendant. In accordance with paragraph 3 of Article 40 of the Law, when retrofitting and (or) redeveloping apartments and non-residential premises, the mandatory written consent of at least two thirds of the total number of owners of apartments and non-residential premises is required in cases where changes affect: load-bearing and (or) enclosing structures; the functional purpose of apartments and non-residential premises. According to subparagraph 17) of Article 2 of the Law, re-equipment is a change in a room (premises) associated with a change in its functional purpose, a complete or partial replacement of the internal system of technological and (or) engineering equipment necessary for life support and operation. The applicant indicates that she did not give permission for the renovation and redevelopment of the apartment. From the inspection report of specialists of the State Institution "Office of the Akim of the city of Abai, Karaganda region", the State Institution "Department of Entrepreneurship and Industry of the Abai district", the Administrative division of the Abai district of the adjacent territory of the residential building No. 6 on Ugolny Lane in the city of Abai dated June 19, 2019, it follows that the land plot is used by the owner K. for rental (as a place for recreation by the type of hotel), that is, not for its intended purpose, which violates the current legislation. The case file contains a notification from the State Institution "Office of the Akim of the city of Abai, Karaganda region" dated June 20, 2019 No. 2-4/716, sent to the defendant, stating the need to change the purpose of the land plot in accordance with the current legislation of the Republic of Kazakhstan and obtain technical documentation for conversion. Taking into account the fact that apartment No. 2, owned by K. with the right of ownership to the land plot, has not been removed from the housing stock and has not been transferred to commercial premises, and the purpose of the land plot has not been changed, K. must use this apartment for its intended purpose as an apartment for long-term living with one entrance door, without violating the rights and legally protected interests of other persons and the state.
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