Housing legal relations concerning the eviction of citizens from their homes without providing other housing

 

Regulatory framework, When considering civil eviction cases, courts are guided by the Constitution of the Republic of Kazakhstan, the Civil Code of the Republic of Kazakhstan, the Laws of the Republic of Kazakhstan "On Housing Relations", the Land Code of the Republic of Kazakhstan, the Laws "On Mortgage of Immovable Property" and "On State Registration of Rights to Immovable Property", as well as Regulatory Rulings of the Supreme Court of the Republic of Kazakhstan (dated July 18, 1997, No. 9 "On the practice of Applying Legislation on the privatization of residential premises by Citizens", dated April 20, 2006, No. 3 "On the practice of Court Consideration of Disputes on the Right to housing abandoned by the Owner", dated July 09, 1999, No. 10 "On some Issues of Dispute Resolution related to the protection of Ownership of housing" and dated December 25, 2006, No. 8 "On some issues of Application by Courts of legislation on forced alienation of land plots for state needs" and others).

Eviction of the owner's family members and other tenants from the dwelling is allowed in accordance with Article 30 of the Law "On Housing Relations" as a result of the termination of ownership rights. Eviction without providing another dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock is regulated by art.107 of the Law "On Housing Relations" and is exhaustive.

Eviction of an employer (sub-tenant), members of his family or other persons living together with him without providing another home is allowed in cases where:

- they systematically destroy or spoil the home;

- they use the dwelling in violation of the requirements of Article 4 of the Law on Housing Relations;

- by systematically violating the rules of the dormitory, they make it impossible for others to live with them in the same room or in the same apartment building;

- they have been avoiding paying for the use of housing for six months in a row without valid reasons.;

- persons are deprived of parental rights and their cohabitation with children, in respect of whom they are deprived of parental rights, is considered impossible.;

- a person who occupied a dwelling on his own;

- the housing lease agreement was declared invalid on the grounds provided for in paragraph 1 of Article 108 of the Law on Housing Relations;

- they acquired another dwelling by right of ownership, regardless of its location;

- the grounds provided for in Articles 111 of the Law "On Housing Relations" have arisen (with the exception of the cases provided for in paragraph 3 of Article 101, paragraph 2 of Articles 109 and 114 of the Law "On Housing Relations")

When resolving these disputes, it is necessary to be guided by the provisions of:

- Article 17 of the Law "On Housing Relations", according to which the right of ownership of a dwelling arises from the moment of its registration with an authorized body;

- Article 30 of the Law "On Housing Relations", on the procedure for eviction of family members of the owner and other tenants from the dwelling;

- Article 107 of the Law "On Housing Relations", grounds for eviction without providing another dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock;

- Article 188 of the Civil Code, according to which the owner has the right to own, use and dispose of his property; - Article 264 of the Civil Code on the owner's right to demand the elimination of any violations of his right, even if these violations were not connected with the deprivation of possession.

The courts of first instance, mainly at the stage of claim proceedings, return statements of claim due to non-compliance with Articles 150-151 of the CPC RK. Also, claims are left without movement due to the lack of supporting documents for housing.

In addition, based on art. 364 of the CPC of the Republic of Kazakhstan, the grounds for revoking or changing a court decision on appeal are incorrect determination and clarification of the range of circumstances relevant to the case, the lack of evidence of the circumstances established by the court of first instance that are relevant to the case; inconsistency of the conclusions of the court of first instance set out in the decision, the circumstances of the case, violation of the or incorrect application of substantive or procedural law norms.

Thus, the Stepnogorsk City Court of the Akmola region considered a civil case on the statement of claim of Abdrakhmanova Zh.B. to the defendants P.O.N., U.E.A., P.E.A. on recognition of ownership rights by virtue of the statute of limitations and on the counterclaim of D.Y.A. to A.Zh.B. on eviction without housing.

By the decision of the Stepnogorsk City Court of the Akmola region dated 06/04/2015, the claim of A.Zh.B. to the defendants P.O.N., U.E.A., P.E.A. for recognition of ownership rights due to the statute of limitations was left without satisfaction, the counterclaim of D.Yu.A. to A.Zh.B. for eviction without housing was satisfied.

The appellate judicial board of the Akmola Regional Court found that the plaintiff A.Zh.B. lives in the disputed apartment with her two minor children and her husband B.S.S., however, since the court of first instance did not involve B.S.S. in the case, he was involved as a third party by definition of the board.

By a decision of the Appellate judicial board for Civil and administrative cases of the Akmola Regional Court, the decision of the court of first instance was overturned, and the plaintiffs' statement of claim was left without consideration, according to paragraph 9 of Article 249 of the CPC of the Republic of Kazakhstan.

The family members to be evicted from the apartment building must be fully indicated in the statement of claim. The basis of claims for eviction from a dwelling is the return of property to its owner.

By virtue of Article 260 of the Civil Code of the Republic of Kazakhstan, the owner has the right to claim his property from someone else's illegal possession.

At the same time, on the basis of Article 265 of the Civil Code of the Republic of Kazakhstan, a claim for eviction from a dwelling may be filed by a person who, although not the owner, owns the property on the basis of economic management, operational management, permanent land use, or on another basis provided for by legislative acts or an agreement. This person has the right to defend his possession also against the owner.

At the same time, on the basis of Article 265 of the Civil Code of the Republic of Kazakhstan, a claim for eviction from a dwelling may be filed by a person who, although not the owner, owns the property on the basis of economic management, operational management, permanent land use, or on another basis provided for by legislative acts or an agreement.

At the same time, for this category of cases, the courts should pay attention to the availability of complete data of all tenants (defendants) subject to eviction, including minors, written information and title documents confirming that the specified property belongs to the plaintiff.

If it is established that the defendant has the same right to housing as the plaintiff, and that a third person lives in the specified dwelling with the consent of one of the owners, the eviction of such a person will be unjustified.

In this case, the plaintiff has the right to demand the establishment of the order of ownership of the common property.

118, 152, 155 of the Civil Code of the Republic of Kazakhstan, Article 17 of the Law "On Housing Relations", as well as the Law "On State Registration of Rights to immovable Property and Transactions with it", ownership of immovable property, as well as other rights are subject to state registration.

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.

According to Article 21 of the Law "On Housing Relations", spouses and their children who live together permanently are recognized as family members of the homeowner. The parents of the spouses, as well as children who have their own families and permanently reside with the owner, can be recognized as members of the owner's family only by mutual agreement.

So, S.A. appealed to the Talgar district Court of the Almaty region to the defendants T.M.B. and A.A. with a claim for eviction, as well as the return of the utility bill book, receipts for electricity, water and gas. According to the specified claim, the plaintiff's claim was partially satisfied: T.M.B., born on 11/08/1973, and A.A., born on 01/08/1999, were evicted from their home located at the address: Talgar, B. St., house No. 15, sq. no. 44 without providing other housing; the claim regarding the claim from T.M.B. books utility bills, receipts for electricity, water, and gas were left without satisfaction.

It was established in court that the plaintiff S.A. had purchased the apartment under a contract of sale from K.S.D. The contract of sale of the apartment was registered with the Department of Justice of the Talgar district and the plaintiff was recognized as the owner of the apartment. After the purchase, the apartment temporarily housed the defendants, but the defendants, unwilling to voluntarily vacate the apartment, began to prevent the plaintiff from accessing her apartment in every possible way. Thus, the plaintiff could not dispose of her property at her discretion.

The decision was left unchanged by the decision of the Appellate judicial Board of the Almaty Regional Court for Civil and Administrative Cases. According to Clause 2 of Article 118 of the Civil Code of the Republic of Kazakhstan, rights (encumbrances of rights) to immovable property arise, change and terminate from the moment of state registration, unless otherwise established by this Code and the Law of the Republic of Kazakhstan "On State Registration of Rights to Immovable Property". If registration is not refused, the moment of state registration is recognized as the moment of filing the application.

 

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