Imposition of an Obligation to Suspend Construction and Installation Works and Demolish an Unauthorized Construction

A Claim for Recognition of Ownership of an Unauthorized Construction, Where the Landowner and the Developer Are the Same Person, May Not Be Used to Simplify the Registration of Rights to a Newly Created Immovable Property Object in Order to Circumvent the Requirements of Special Legislation

The dismissal of a claim for recognition of ownership of an unauthorized construction is justified where the claimant, in the same capacity, is both the owner or permanent land user of the land plot and the developer of the unauthorized construction.

By a decision of the Pavlodar City Court dated 26 February 2021, the claim filed by T.V. against A.S. for recognition of ownership of an unauthorized construction and recovery of a monetary amount was dismissed.

The statement of claim indicated that, during his lifetime, the claimant's spouse, S.S., had erected garages on the land plot at the place of residence without obtaining the required authorization documents, converted a shed into a coal storage facility, and constructed an unheated extension to the residential house.

The auxiliary and residential construction facilities possessed the characteristics of unauthorized constructions. At the same time, the designated purpose of the land plot permitted construction in accordance with the act certifying the right of private ownership of the land plot.

These structures did not violate the rights and interests of other persons, complied with construction and urban-planning standards, and the preservation of the unauthorized construction did not pose a threat to the life or health of citizens.

The defendant refused to voluntarily register these structures, as the value of the property subject to division and the monetary equivalent of her share to be allocated would increase significantly.

In dismissing the claim, the court proceeded from the fact that, pursuant to paragraph 1 of Article 244 of the Civil Code of the Republic of Kazakhstan, an unauthorized construction is a residential house, another building, structure, or other immovable property created on land owned by the State that has not been formed into land plots, on a land plot that does not belong to the person carrying out the construction, or created without obtaining the permits required under the land legislation of the Republic of Kazakhstan, the legislation of the Republic of Kazakhstan on architectural, urban-planning and construction activities, and other legislation of the Republic of Kazakhstan.

The court established that the structures erected by the deceased S.S. had not been commissioned and that ownership rights thereto had not been registered; therefore, they had not been included in the estate.

The act of acceptance of the completed construction facility into operation by the owner independently, dated 25 September 2020, was executed by T.V. after the death of the deceased. At the same time, according to the response of the authorized body in the field of architecture, the facility had been entered in the registration log.

However, when T.V. applied to the authorized body for registration of the act of acceptance of the completed construction facility into operation, registration was refused due to the absence of consent from the second co-owner.

In substantiating the claim against the defendant A.S., the claimant referred to paragraph 23 of the Regulatory Resolution “On Certain Issues of the Application by Courts of Legislation on Succession”, according to which succession to immovable property erected without authorization—on a land plot not allocated for such purposes, without obtaining the necessary construction permits, and in other similar circumstances—may take place only through court proceedings.

A notary is not entitled to issue a certificate for the registration of ownership of such property in the name of the deceased. In this regard, the claimant considered that an unauthorized construction does not constitute property lawfully belonging to the deceased and may not be included in the estate.

At the same time, heirs who have accepted the inheritance are not deprived of the right to seek recognition of ownership of an unauthorized construction.

The court concluded that the disputed legal relationship could be resolved through a joint application by all heirs. In such cases, the claim must be brought against the local executive body in accordance with the Law “On Local State Administration”, since the Akim represents the interests of the relevant administrative-territorial unit in its relations with state bodies, organizations, and citizens.

Accordingly, the proper defendant in such cases is the Akim of the relevant administrative-territorial unit.

It was also noted that judicial recognition of ownership of an unauthorized construction constitutes an exceptional remedy for the protection of rights and may not be used to circumvent procedures established by law for the purpose of simplifying the registration of rights to a newly created immovable property object.

Applying to the court for the purpose of legalizing unauthorized constructions is closely connected with the category of disputes concerning claims for the demolition of unauthorized constructions.

Such claims may be filed by authorized bodies in the field of urban-planning control or by persons whose rights have been violated by unauthorized construction facilities, particularly where it is impossible to bring the construction into compliance with the established requirements.

Thus, alongside claims for recognition of ownership of an unauthorized construction, claims for the demolition of structures constitute one of the forms of protection of a violated or disputed right.

A.K. filed a claim against LLP “O” seeking to impose an obligation to suspend the construction and installation works of a multi-apartment residential building and to demolish an unauthorized construction.

By the decision of the Atyrau City Court dated 23 December 2021, the claim was dismissed on the grounds that it had been brought against an improper defendant.

As follows from the case materials, the claim was filed with the court on 24 September 2021, and at the time the claim was accepted for court proceedings, the LLP was the owner of the land plot and the developer. The subsequent change of ownership, of which the LLP notified the court in writing, should have constituted grounds for replacing the improper defendant with the proper defendant in accordance with Article 50 of the Civil Procedure Code.

However, by the court's rulings, the new owners, Zh.I. and M.K., were involved in the proceedings as third parties on the defendant's side, while their involvement as co-defendants was denied.

The above violations of procedural law resulted in the court failing to take measures to fully establish the circumstances of the case, limiting itself to the possibility of resolving the case on the grounds that the claim had been brought against an improper defendant.

Whereas the court should have determined whether the claimant's rights had been violated and how reliable and substantiated the arguments presented by the claimant were.

By the decision of the Tekeli City Court of the Zhetysu Region dated 21 December 2023, the claim filed by K.M. against the Akim of the City of Tekeli for recognition of ownership of an unauthorized construction was granted.

The claimant requested recognition of ownership of a medical center constructed by the claimant and located in the City of Tekeli.

The case materials established that the medical center had been constructed on a land plot belonging to the claimant, but without compliance with the permitting procedures provided for by the legislation of the Republic of Kazakhstan on architectural, urban-planning and construction activities.

These cases were not subject to appellate review and were cited in the generalization of judicial practice conducted by the Zhetysu Regional Court as examples of incorrect resolution of cases.

That is, the appellate instance of this region, as well as those of other regions, should work towards establishing proper judicial practice in the courts of first instance.

Paragraph 11 of the Regulatory Resolution “On Certain Issues of Resolving Disputes Related to the Protection of Ownership Rights to Housing” provides explanations enabling courts to determine the principal approach to resolving such disputes.

It should be borne in mind that an authorized body, a prosecutor, the owner, or a permanent land user of a land plot is entitled to file a claim for demolition.

As the generalization has shown, this category of cases is considered upon claims filed by authorized bodies in the field of architecture, urban planning and construction that exercise architectural and construction control and supervision.

The demolition of an unauthorized construction object constitutes an extreme measure of civil-law liability, and the elimination of the consequences of violations must be proportionate to the violation itself. Such measures must not create an imbalance between public and private interests resulting in disruption of the stability of commercial and economic relations or causing disproportionate losses.

When assessing the significance of violations committed during the construction of a structure, courts must take into account the provisions of Article 8 of the Civil Code concerning the inadmissibility of actions by citizens and legal entities carried out solely with the intention of causing harm to another person or other forms of abuse of rights, as well as the proportionality of such actions to the chosen method of protection of civil rights.

Pursuant to paragraphs 1 and 2 of Article 244 of the Civil Code, an unauthorized construction is a residential house, another building, structure or other immovable property created on land belonging to the State that has not been formed into land plots, on a land plot that does not belong to the person carrying out the construction, or created without obtaining the permits required under the land legislation of the Republic of Kazakhstan, the legislation of the Republic of Kazakhstan on architectural, urban-planning and construction activities, and other legislation of the Republic of Kazakhstan.

When considering disputes related to unauthorized constructions, courts must comprehensively assess whether a substantial violation has been committed in the field of architectural, urban-planning and construction activities in the Republic of Kazakhstan, whether the preservation of the construction would result in a violation of the rights and legitimate interests of other persons, and whether it would pose a threat to the life and health of citizens.

For this purpose, courts should request from the parties the relevant expert opinions, as well as evidence confirming that the structure complies with urban-planning and construction norms and regulations.

In addition, it is necessary to determine whether, prior to filing the claim, demands for the demolition of the disputed objects had been made through administrative procedures. This would indicate the existence of certain evidence, namely, the issuance of orders by authorized bodies upon detecting violations of state regulatory requirements, as well as the imposition of administrative fines on the owners of the property.

No limitation period applies to a claim for the demolition of an unauthorized construction erected on the claimant's land plot without the claimant's consent, where the claimant possesses that land plot, or to a claim for the demolition of an unauthorized construction that poses a threat to the life and health of citizens (Article 187 of the Civil Code).

At the same time, it should be borne in mind that the provisions of paragraph 2 of Article 244 of the Civil Code concerning demolition apply only to unauthorized constructions.

The most common disputes in practice concerning the demolition of structures located in violation of the boundaries of adjacent land plots, the so-called “neighbour disputes,” are subject to resolution in accordance with the provisions of the law governing the protection of ownership rights and other proprietary rights.

By the decision of the Taraz City Court of the Zhambyl Region dated 20 June 2022, the claim filed by T.I. against T.P. seeking to compel the demolition of an unauthorized construction was granted.

The case materials established that the subject matter of the dispute was an unfinished garage constructed by the defendant on the defendant's own land plot. However, part of the structure extended beyond the boundary line between the parties' land plots and was located on the claimant's land plot. The court correctly granted the claim.

At the same time, the court incorrectly applied Article 244 of the Civil Code, since in this case there were no grounds to classify the structure erected by the defendant as an unauthorized construction.

The generalization showed that courts generally resolve this category of disputes correctly. Claims for the demolition of unauthorized constructions are, for the most part, considered correctly by the courts and do not cause significant difficulties.

When filing a claim, the claimant in all cases confirms the fact that an unauthorized construction was carried out in violation of the procedure established by law.

The practice of considering cases related to unauthorized constructions and involving the demolition of construction objects is particularly relevant in the cities of Astana and Almaty.

The State Institution “Department of the Fuel and Energy Complex and Public Utilities of the City of Astana” and LLP “V” filed a claim against LLP “S,” seeking to oblige the defendant, at its own expense, to demolish an unauthorized construction, namely a “Multi-Apartment Residential Complex with Integrated Premises and Parking” (hereinafter referred to as the “Residential Complex”), located at the intersection of Ch. Aitmatov Street and Zh. Moldagaliyev Street, Yesil District, Astana (hereinafter referred to as the Department, LLP “V”, the Partnership, and the Residential Complex).

It was established in the case that, by a resolution of the Akimat of the City of Astana, two land plots (sites) were allocated to the Department for a period of three years for conducting survey, engineering investigation and design works relating to the sixth connection of the heating main.

Following an application by the contractor and the Department concerning the impossibility of carrying out pipeline installation works on the allocated land plot, an appropriate inspection was conducted.

The inspection established that, since July 2022, the Partnership had been carrying out construction of a four-block multi-apartment residential complex with integrated premises and parking at the specified address without obtaining the relevant permit, without approval of the working design, and without having rights to the land plot. Pile-driving works had been completed, and work on the construction of the pile foundation grillage had commenced.

Following consideration of the case, the Department's claim was granted, and the Partnership was ordered to demolish the unlawful construction at its own expense.

This part of the court's decision was referred for immediate enforcement pursuant to paragraph 1 of Article 244 of the Civil Procedure Code.

By the ruling of the Judicial Panel for Civil Cases of the Court of the City of Astana dated 26 May 2023, the court's decision was upheld without amendment.

At the same time, the Judicial Panel issued a special ruling addressed to the Akim of the City of Astana concerning the violations identified.

In order to fulfill its assigned tasks, since 2018 the Department of the Fuel and Energy Complex and Public Utilities of the City of Astana, on the basis of resolutions of the Akim of the City dated 9 October 2018 and 30 May 2022, had carried out survey, engineering investigation and design works for the “Main Heating Supply Networks” on a land plot with an area of 25.1177 hectares, located in the Yesil District near the Korgalzhyn Highway.

However, due to the unauthorized and unlawful construction carried out by LLP “S,” the construction schedule, and consequently the provision of consumers with heating (gas), was disrupted.

The Judicial Panel drew attention to the fact that the state supervisory body had failed to timely identify and prevent the unlawful actions of the unscrupulous developer.

Thus, the above dispute is an example of an unauthorized construction erected on land belonging to the State that had not been formed into land plots.

Other examples concern unauthorized constructions erected on land plots that do not belong to the person who carried out the construction.

Pursuant to Articles 31 and 31-1 of the Law on Architecture, the authorized body for architecture, urban planning and construction exercises architectural and construction control and supervision by visiting construction facilities, as well as by monitoring the activities of local executive bodies responsible for architecture, urban planning, construction and state architectural and construction control.

State architectural and construction control and supervision is exercised with regard to the existence of the relevant right to the land plot, approved design (design and estimate) documentation, a positive expert opinion on the projects, as well as notification of the bodies exercising state architectural and construction control and supervision of the commencement of construction and installation works.

Upon identifying violations of state regulatory requirements and/or deviations from approved designs (design solutions), the state architectural and construction control and supervision authorities take decisions and issue orders.

Orders, instructions and other decisions of state architectural and construction control and supervision authorities, as well as decisions of state bodies issued in accordance with the procedure established by law, are binding on all entities engaged in architectural, urban-planning and construction activities within the territory of the Republic of Kazakhstan.

The facts of holding defendants administratively liable for failure to comply with the requirements of an order pursuant to Articles 463, 321 and 319 of the Code of Administrative Offenses constitute part of the evidentiary basis when filing a claim with the court.

The State Institution “Department for Control and Quality of the Urban Environment of the City of Astana” filed a claim against LLP “S” seeking to compel the suspension of construction and installation works and the dismantling of structures.

An unscheduled inspection was conducted with respect to LLP “S” concerning the facility “W Multi-Apartment Residential Complex,” located in the Yesil District of the City of Astana.

Following the inspection, Order No. 326 dated 28 July 2022 was issued.

The claim was based on the fact that the developer had failed to comply with the requirements of the order, while the defendant had repeatedly been held administratively liable for carrying out construction and installation works without the requisite permits and title documents for the land plots being developed.

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

By the decision of the Specialized Interdistrict Economic Court of the City of Astana dated 28 October 2022, the claim was granted.

LLP “S” was ordered to suspend all construction and installation works at the “W Multi-Apartment Residential Complex” facility.

LLP “S” was also ordered to dismantle the structures erected at the said facility.

With reference to Article 17 of the Law on Architecture, the court stated that violations by entities engaged in architectural, urban-planning and construction activities of the norms and requirements (conditions, rules and restrictions) established by legislation on architectural, urban-planning and construction activities entail liability provided for by the laws of the Republic of Kazakhstan.

Such violations include, inter alia, unauthorized construction, as well as alteration of the architectural appearance and redevelopment (re-equipment or change of functional designation) of buildings, individual premises and/or parts of buildings.

The court established that the developer had carried out construction of the facility with gross violations of the applicable legislation, which was not disputed by the defendant's representative.

Works at the facility were carried out without a notification of the commencement of construction and installation works duly registered with the authorized body, in violation of paragraph 12 of Article 68 of the Law on Architecture. In addition, the defendant had no relevant right to the land plot.

The developer failed to comply with Order No. 326 of the authorized state body dated 28 July 2022. As a result, administrative offense reports were drawn up against LLP “S” under Articles 463, 321 and 319 of the Code of Administrative Offenses.

In addition, by the legally effective decision of the Specialized Interdistrict Administrative Court of the City of Astana dated 22 August 2022, the defendant was held administratively liable under Article 319 of the Code of Administrative Offenses (unlawful construction of industrial, residential, utility, hydraulic (water-management) or domestic facilities without the relevant right to land) and fined KZT 107,205, without compulsory demolition.

By the legally effective decision of the Specialized Interdistrict Administrative Court of the City of Astana dated 31 August 2022, the defendant was also held administratively liable under Part 1 of Article 463 of the Code of Administrative Offenses (engaging in entrepreneurial or other activities, as well as carrying out actions (operations) without registration or a permit, or failure to submit a notification where registration, a permit or submission of a notification is mandatory, provided that such actions do not contain elements of a criminal offense) and fined KZT 85,764, without compulsory demolition.

By the decision of the Judicial Panel for Civil Cases of the Court of the City of Astana dated 21 December 2022, the court's decision was upheld without amendment.

In another case, the State Institution “Department for Control and Quality of the Urban Environment of the City of Astana” filed a claim against LLP “T” seeking to compel compliance with the requirements of an order.

The claimant conducted an unscheduled inspection of LLP “T” concerning the facility “Summer Café,” attached to Non-Residential Premises No. 3, located in the Yesil District of the City of Astana.

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

The defendant's violations of the requirements of the legislation were established by legally effective decisions of the Specialized Interdistrict Administrative Court.

It was also established that construction of the facility had commenced on a land plot owned by a third party.

On 16 August 2022, the claimant issued an order to the LLP to remedy the violations, namely: to submit a notification slip on the commencement of construction and installation works; to obtain the relevant title document for the land plot (construction site or right-of-way) or a decision of the executive body on its allocation; to approve the design and estimate documentation; to obtain a positive expert opinion on the project; to ensure construction of the facility with technical and author supervision; and to suspend operation of the summer café until the acceptance certificate for the completed facility is approved for commissioning.

By the decision of the Specialized Interdistrict Economic Court dated 26 December 2022, the claim was granted. The LLP “T” was ordered to comply with the requirements of the order to remedy the violations dated 16 August 2022, namely: to submit a notification slip on the commencement of construction and installation works; to obtain the relevant title document for the land plot (construction site or right-of-way) or a decision of the executive body on its allocation; to approve the design and estimate documentation; to obtain a positive expert opinion on the project; to ensure construction of the facility with technical and author supervision; and to suspend operation of the summer café until the acceptance certificate for the completed facility is approved for commissioning.

Disputes related to unauthorized construction erected without obtaining the required authorization (with deviations from the design documentation) are characteristic of cities experiencing active development.

The State Institution “Department for Control and Quality of the Urban Environment of the City of Astana” filed a claim against LLP “E” seeking to compel compliance with Order No. 671 dated 30 December 2022 by suspending construction and installation works at the facility “Multi-Apartment Residential Complex with Built-In Premises and Parking.”

The claimant conducted an unscheduled inspection of LLP “E” concerning the facility “Multi-Apartment Residential Complex with Built-In Premises and Parking,” located in the “Almaty” District of Astana. The inspection was duly registered with the Department of the Committee for Legal Statistics and Special Records for the City of Astana on 28 December 2022 under No. 2271000002200032/00620.

Following the inspection, the Department established that, with respect to Blocks 1 and 2, a positive expert opinion dated 26 December 2022 No. EXLEAD-0032/22 (“Chamber of Expert Organizations”) had been obtained, according to which the facility consists of five floors; however, construction of the structural frame was being carried out at the level of the sixth and seventh floors.

By the decision of the Specialized Interdistrict Economic Court dated 16 May 2023, the claim was granted. LLP “E” was ordered to suspend construction and installation works at the facility “Multi-Apartment Residential Complex with Built-In Premises and Parking,” located in the “Almaty” District of Astana, until compliance with Order No. 671 dated 30 December 2022 by submitting a notification of the commencement of construction and installation works and obtaining the relevant right to the land plot allocated for construction of the facility.

According to the court’s findings, construction of buildings exceeding six floors must be carried out on the basis of design documentation that has undergone state expert review in accordance with the procedure established by law.

The State Institution “Department of Urban Planning Control of the City of Almaty” filed a claim against A.V. seeking to invalidate the acceptance certificate for the facility for commissioning, recognize the facilities as unauthorized construction, and demolish them. The following were involved in the proceedings as third parties: the Municipal State Institution “Department of Urban Planning and Urbanism of the City of Almaty” and individuals who had entered into preliminary agreements for the purchase and sale of the housing under construction.

The claim was based on the fact that, instead of an individual residential house, the defendant had constructed, on the land plot and without the requisite permits, a residential complex consisting of two facilities.

The Rules for the Organization of Development, adopted pursuant to subparagraph 23-14) of Article 20 of the Law on Architecture, regulate the procedure for development within the territory of a populated area, while paragraph 22 of the Rules for the Organization of Development provides for the phased implementation of construction projects.

In violation of the requirements of the Rules for the Organization of Development, defendant A.V. carried out construction and installation works using the хозяйственный method without a notification of the commencement of construction and installation works, without design and estimate documentation, and, accordingly, without a positive expert opinion on the project and without technical and author supervision.

The authorized body in the field of urban planning control drew up an administrative offense report against the defendant under Part 1 of Article 316 of the Code of Administrative Offenses.

An order to remedy the identified violations was issued, requiring the defendant to suspend construction and installation works and bring the facility documentation into compliance. The order was not complied with, as a result of which the defendant was held administratively liable under Article 462 of the Code of Administrative Offenses.

At the same time, the defendant failed to provide sufficient evidence that preservation of the structure would not result in violation of the rights and legally protected interests of other persons or create a threat to the life and health of citizens.

The technical condition report on the construction facility contained in the case materials does not confirm the reliability and stability of the building, since the assessment was made in respect of an individual residential house rather than the residential complex consisting of two facilities.

The court also assessed the arguments of the defendant and third parties who considered that, pursuant to paragraph 22 of the Rules for the Organization of Development, the construction of technically uncomplicated facilities of the third level of responsibility, to which they believed the constructed facility belonged, did not require the development and expert review of pre-design and design documentation.

It was established that the constructed facilities consisted of a basement level and three above-ground floors and were of the townhouse type.

In view of the foregoing circumstances, the claim filed by the State Architectural and Construction Control authority was granted.

The claim of the Almaty City State Architectural and Construction Control authority against M.A. seeking demolition of the unauthorized construction was correctly resolved only by the court of cassation.

The lower courts dismissed the claim, reasoning that the claimant had not provided evidence demonstrating that the facility had been constructed in violation of the applicable construction norms and rules, or that it posed a threat to the life and health of citizens or violated the legally protected rights and interests of third parties.

Pursuant to Article 24-2 of the Law on Architecture, the design of facilities 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, in emergency situations, in the event of anticipated violations during construction and installation works, and in cases of impermissible construction.

When carrying out construction and installation works, the developer is obliged to implement the entire set of safety measures specified in the design documentation and ensure the possibility of monitoring and supervising their implementation at various stages of construction of the structure.

The defendant failed to comply with the above statutory requirements.

In this case, it was established that the developer had violated paragraph 22 of the Rules for the Organization of Development, namely, had failed to comply with the stages of the authorization procedures.

It was established that, without approved design and estimate documentation that had undergone expert review in accordance with the established procedure, and without author and technical supervision, the defendant had constructed a three-story multi-apartment residential building with a basement and an exploitable roof.

The violations were confirmed by decisions holding the defendant administratively liable under Part 1 of Article 316 and Article 321 of the Code of Administrative Offenses.

Under these circumstances, the court of cassation set aside the judicial acts of the lower courts and rendered a new decision granting the claim.

The above examples clearly demonstrate the issues that arise when considering cases concerning unauthorized construction erected by a person who has the land plot in lawful use.

In this regard, it should be taken into account that, pursuant to paragraph 2 of Article 68 of the Law on Architecture, a customer intending to undertake construction of a facility is obliged, in accordance with the land legislation of the Republic of Kazakhstan, to obtain from the local executive bodies of districts (cities) a decision granting the relevant right to land.

Where the customer has the relevant right to land and the land plot is located within a functional zone designated for construction of the facility in accordance with the approved detailed planning project, obtaining an additional decision from the local executive bodies of districts (cities) is not required.

A person who has carried out unauthorized construction does not acquire ownership rights to such construction. Such person is not entitled to dispose of the construction by selling it, gifting it, leasing it, or entering into other transactions.

Pursuant to Article 34-2 of the Law on Architecture, the construction customer is obliged to provide the facility with all necessary permits and authorization documents required by the legislation of the Republic of Kazakhstan.

Under Article 188 of the Civil Code, the right of ownership is a right recognized and protected by legislative acts, whereby an entity may, at its discretion, possess, use and dispose of property belonging to it.

The exercise by an owner of his or her rights must not violate the rights and legally protected interests of other persons or the State.

An owner is obliged to take measures to prevent harm to the health of citizens and the environment that may be caused in the exercise of his or her rights.

Pursuant to Article 65 of the Land Code, owners of land plots and land users are obliged to:6) when carrying out economic and other activities on a land plot, comply with construction, environmental, sanitary and hygienic, and other special requirements (norms, rules and standards).

Articles 68 and 70 of the Law on Architecture provide that, at the relevant stages of the construction process, the procedures established by this Law must be carried out and the requirements set forth therein must be complied with.

The norms and provisions establishing requirements for entities engaged in architectural, urban-planning and construction activities with regard to ensuring the proper quality of construction and construction products are regulated by the Civil Code and apply to all types of volumetric, planar and linear capital structures (structures, buildings and their complexes, utilities), including the technological and engineering equipment related thereto, as well as to all types of works (services) involving their design, construction, and manufacture (production) of construction materials, products and structures, regardless of the intended purpose of the construction products (facilities).

Throughout the entire period of construction (conservation) and the service life (operation) of facilities, the owners (customers, holders, tenants and lessees) must ensure the following basic quality characteristics: safety during construction and operation, including the performance of works and maintenance.

A number of civil cases initiated by the State Architectural and Construction Control authority of Almaty against G.Sh. and LLP “V” resulted in a claim seeking to prohibit construction of the projected 11-story administrative building on the land plot owned by G.Sh., and subsequently in a claim seeking to impose an obligation to backfill the excavation pit.

By the decision of District Court No. 2 of the Almaly District of Almaty dated 21 July 2023, the claim was granted. G.Sh. and LLP “B” were ordered to backfill the excavation pit developed during construction of the building located on the land plot in the Almaly District of Almaty within one month from the date the decision became legally effective.

According to the judicial acts, the defendants failed to comply with the required setback between the excavation pit of the facility under construction and the existing structures (residential buildings), which was required to be more than 35 meters; in fact, the distance was 15 meters and 12 meters instead of the regulatory 50 meters. The design documentation also contained violations of fire safety requirements, namely, the regulatory conditions necessary for the access and operation of firefighting equipment in the area of the 11-story administrative building had not been ensured. The excavation pit, dug to a depth of 11 meters, posed a threat to human life and health. Construction was being carried out in a seismically hazardous and densely populated area.

By the decision of District Court No. 2 of the Almaly District of Almaty dated 14 September 2023, the claim of B.D. against V.A. seeking to remedy violations by dismantling the fence and existing structures was dismissed.

In support of the claim, the claimant stated that the defendant had erected a fence and a structure on the claimant’s land plot, as confirmed by the land plot location plan. The boundaries of the adjacent land plot did not correspond to the title document confirming ownership with the relevant cadastral number.

In rendering its decision, the court proceeded from the information provided by the Almaty City Branch of the Non-Profit Joint-Stock Company “Government for Citizens” State Corporation, according to which the actual boundaries of the parties’ land plots did not correspond to the boundaries specified in the previously issued title documents. The discrepancy in the area of the defendant’s land plot amounted to 0.0059 hectares, while the discrepancy in the area of the claimant’s land plot amounted to 0.0155 hectares. Given that judicial protection is afforded to a violated right, the court’s conclusions were correct.

The range of circumstances having legal significance in cases of this category should be determined based on the general conditions that must be complied with when constructing or reconstructing any real estate facility.

These conditions may be grouped as follows:

1. evidence of the existence of a right to the land plot on which construction is being carried out, or authorization from the owner of the land plot or the owner of an existing structure to carry out construction or reconstruction;
2. evidence of compliance with the designated purpose and permitted use of the land plot, as well as with the red lines established by planning projects;
3. the existence of design documentation approved in accordance with the established procedure, serving as the basis for issuing a construction permit;
4. the existence of a construction permit, that is, a document confirming the compliance of the design documentation with the requirements of the urban-planning plan of the land plot and granting the developer the right to carry out construction, reconstruction and major repairs of capital construction facilities;
5. evidence of compliance with urban-planning regulations and construction, environmental, sanitary and hygienic, fire safety and other rules and standards;
6. evidence of compliance with the rights and legitimate interests of owners, landowners, land users and lessees of adjacent land plots and other real estate facilities.

If an unauthorized construction is erected by the owner (holder, user) of a land plot, his or her rights to that land plot must be confirmed by an entry in the State Register of Rights to Immovable Property and Transactions Therewith, as well as by state acts, certificates and other documents certifying rights to land.

Another important aspect of proof in a case concerning recognition of ownership rights is establishing the safety of the facility.

If an unauthorized construction, regardless of where it is located, poses a threat to the life and health of citizens, ownership rights to it cannot be recognized.

Arguments of the claimant, for example, that the facility was erected in the center of his or her land plot and that access to it by other persons was restricted, have no legal significance.

The analysis also shows that evidence submitted to the court confirming that preservation of an unauthorized construction does not violate the rights and interests of third parties and does not pose a threat to the life or health of citizens includes: a construction expert opinion demonstrating that the erected structure complies with construction and urban-planning norms and rules; conclusions of fire safety authorities and energy supervision authorities; letters from adjacent land users stating that they have no objections to legalization of the construction; and other relevant evidence.

For this purpose, where the necessary opinions of competent authorities are absent or where there are doubts as to their reliability, the court is entitled to order an expert examination in accordance with the rules of procedural legislation.

Paragraph 3 of Article 244 of the Civil Code establishes two cases in which a court may recognize ownership rights to an unauthorized construction: either in favor of the person who carried out the construction (if the construction was erected on land belonging to the State that has not been formed into land plots), or, if the construction was erected on a land plot that does not belong to the person who carried out the construction, in favor of the person to whom the land plot belongs, upon the claim of the relevant person.

A condition for granting the claim of the person who carried out the unauthorized construction is that the land plot on which the construction was erected be provided to such person in accordance with the established procedure for placement of the erected construction.

A condition for granting the claim of the owner of the land plot or the person in whose lawful use the land plot is located is reimbursement to the person who carried out the construction of the expenses incurred, in an amount determined by the court.

In any event, ownership rights to an unauthorized construction cannot be recognized in favor of the persons referred to above if the construction does not comply with the requirements of the legislation of the Republic of Kazakhstan on architectural, urban-planning and construction activities and other legislation, that is, if the person who carried out the construction does not have the relevant documents, which is consistent with the requirements of paragraph 1 of Article 244 of the Civil Code.

The Municipal State Institution “Department of Urban Planning Control of the City of Almaty” filed a claim with the court against individual entrepreneur O.N., with the Municipal State Institution “Department of Urban Planning and Urbanism of the City of Almaty” and N.K. involved as third parties, seeking to recognize the unlawfully erected non-residential premises in the form of a car wash and an auto service complex with a café, with a total area of 329.4 sq. m., as unauthorized construction and to demolish them at the expense of defendant O.N.

The court established that the land plot on which the structures had been erected was indivisible and that a part of this land plot was occupied by the adjacent owner N.K.

According to the state act on the right of private ownership of the land plot, the designated purpose of the real estate was specified as “for the operation and maintenance of a residential house.”

According to the technical passport dated 28 December 2016, non-residential premises in the form of a car wash and an auto service complex with a café, with a total area of 329.4 sq. m., were located at the above address.

It was also established that in 2012 the State Architectural and Construction Control authority of Almaty had drawn up administrative offense reports against owner O.N. for constructing non-residential premises designated as Building A and a residential house without design and estimate documentation that had undergone the required expert review, and without author and technical supervision. An administrative offense report had also been drawn up for the demolition of the former structures designated as A, A1, A2 and A3 in violation of the rules for the improvement of the territories of cities and populated areas.

Thus, the defendant was using the land plot not for its designated purpose and beyond the boundaries specified in the identification document; that is, the car wash and auto service complex with a café had been constructed by the defendant without the required permits and in violation of construction and technical norms and rules.

At the same time, on the basis of the facility inspection report dated 23 October 2020, it was established that the defendant was unlawfully occupying 192 sq. m. of land owned by the State.

The above circumstances served as the basis for the decision of the Specialized Interdistrict Economic Court of Almaty dated 11 March 2021 granting the claim.

Both when recognizing a facility as unauthorized construction and when resolving claims concerning unauthorized reconstruction, it is necessary to determine whether the disputed facility complies with the established urban-planning parameters and requirements and with the legal regime of the land plot, or whether it was constructed with other violations of the established norms and rules, as well as whether it poses a threat to the life and health of citizens.

In the course of the review of judicial practice, the local courts discussed problematic issues concerning the recognition of ownership rights by acquisitive prescription.

When resolving disputes concerning recognition of ownership rights to real estate, courts should bear in mind that the current legislation distinguishes between the grounds for the acquisition of ownership rights by virtue of acquisitive prescription (Article 240 of the Civil Code) and the grounds arising in connection with unauthorized construction (Article 244 of the Civil Code).

Article 240 of the Civil Code sets out the conditions which, taken together, constitute the basis for the acquisition of ownership rights to real estate by acquisitive prescription. Thus, bona fide, open and continuous possession of real estate as one’s own for seven years makes it possible to acquire ownership rights to such property.

In this regard, it should be noted that acquisitive prescription cannot apply to cases where the object of possession and use is an unauthorized structure, including one located on an unlawfully occupied land plot, since in such a situation the necessary condition of the developer’s good faith is absent, as a person carrying out unauthorized construction should have been aware that there were no grounds for the acquisition of ownership rights.

By the decision of the Panfilov District Court of Zhetisu Region dated 16 May 2023, the claim of V.P. against the State Institution “Office of the Akim of the Zharkent Rural District” of the Panfilov District seeking recognition of ownership rights to an unauthorized construction was granted.

The claimant filed a claim with the court, stating that he possessed real estate in the form of a residential house located in the village of Golovatsky, Panfilov District.

Previously, he had applied to the State Institution “Office of the Akim of the Zharkent Rural District” of the Panfilov District requesting allocation of a land plot for construction of a residential house. The land plot was provided, and the claimant constructed a residential house thereon.

The claim was based on the fact that he used the property and paid utility bills, that is, he had possessed the property bona fide, openly and continuously, and requested that ownership rights to the residential house be recognized in his favor.

The court based its decision on the provisions of Article 240 of the Civil Code, under which a citizen or legal entity that is not the owner of property but has possessed real estate bona fide, openly and continuously as its own for seven years, or other property for at least five years, acquires ownership rights to such property (acquisitive prescription), as well as on Article 244 of the Civil Code, under which ownership rights may be recognized to a real estate facility constructed (erected or attached) on a land plot that does not belong to the person who constructed the facility.

The court recognized the ownership rights, stating that the residential house had been constructed by the claimant, who had possessed and used it bona fide, openly and continuously.

An example from the judicial practice of Ulytau Region (formerly Karaganda Region) is also of interest.

By the decision of the Satpayev City Court dated 18 May 2021, the claim of Sh.O. against the State Institution “Office of the Akim of the City of Satpayev” (an improper defendant) seeking recognition of ownership rights to an unauthorized construction—a kiosk—was granted.

As established by the court, the disputed facility had been erected by the claimant in 1994 on a land plot in respect of which the claimant had no land-use rights. The reason why the rights to the unauthorized construction could not be formalized out of court was stated ambiguously as the expiry of the validity periods of the documents issued for the land plot. Most likely, this should be understood as the expiry of the land lease term.

At the hearing, representatives of the state authorities did not object to the claim and, at the same time, did not provide a document confirming the intention of the local executive body to subsequently provide the claimant with a land plot for the kiosk. This circumstance may make enforcement of the judgment difficult in the future or render it impossible.

In granting the claim, the court relied on the fact that the claimant had openly, bona fide and continuously possessed and used the kiosk for more than 27 years and that there were no claims by third parties to the disputed property.

Thus, the court did not establish the circumstances necessary when considering a dispute concerning recognition of ownership rights to an unauthorized construction. At the same time, the reasoning given was characteristic of the resolution of claims for recognition of ownership rights by acquisitive prescription.

Thus, an unauthorized construction is a residential house, other structure, building or other real estate created:

1. on land belonging to the State that has not been formed into land plots;
2. on a land plot that does not belong to the person who carried out the construction;
3. without obtaining the permits required under the land legislation of the Republic of Kazakhstan, the legislation of the Republic of Kazakhstan on architectural, urban-planning and construction activities, and other legislation of the Republic of Kazakhstan (paragraph 1 of Article 244 of the Civil Code).

Procedure for Adjudication

A claim for recognition of a right to an unauthorized construction shall be considered under claim proceedings, since an interested person applies for protection of a violated or disputed right or legitimate interest by resolving a dispute concerning a right.

Paragraph 11 of the Regulatory Resolution “On Certain Issues of Resolution of Disputes Related to the Protection of Ownership Rights to Housing” provides comprehensive explanations on this issue.

Thus, claims for recognition of a right to an unauthorized construction shall, in all cases, be filed with and considered by courts under claim proceedings.

Jurisdiction

Pursuant to paragraph 1 of Article 31 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter – the CPC), claims concerning rights to land plots, buildings, premises, structures, other facilities firmly connected with land (real estate), and other claims shall be filed at the location of such facilities.

Thus, disputes concerning recognition of ownership rights to unauthorized construction shall be considered at the territorial location of the disputed real estate facility.

Where one of the parties to the case is an individual, such claims shall be considered by district courts.

Where the parties to the case are individuals carrying out individual entrepreneurial activities without forming a legal entity and legal entities, the claim shall fall within the jurisdiction of specialized interdistrict economic courts pursuant to paragraph 1 of Article 27 of the CPC.

Persons Participating in the Case

Claims for recognition of ownership rights to unauthorized construction shall be considered by courts under claim proceedings and brought against the local executive body. The defendants in such cases shall be the akims of the relevant administrative-territorial units who head the local executive bodies. Depending on the category of the dispute, such claims may be brought against the owner of the land plot or the developer (the person who erected the unauthorized construction).

Courts should bear in mind that if the unauthorized construction was carried out by contracting organizations, the defendant shall be the customer as the person at whose request the unauthorized construction was carried out.

In each particular case, the composition of third parties whose participation is necessary for the proper resolution of the case shall be determined by the court based on the subject matter and grounds of the claimant’s claims, the defendant’s objections, and the laws applicable to the dispute.

It should be taken into account that the judgment rendered in the case may affect the scope of the rights and obligations of such persons.

State Duty

Pursuant to Article 607 of the Tax Code, state duty is a mandatory payment levied for the performance of legally significant actions and/or issuance of documents by authorized state bodies or officials.

Under Article 149 of the CPC, a document confirming payment of the state duty shall be attached to the statement of claim.

Subparagraph 11) of paragraph 1 of Article 104 of the CPC provides that in claims concerning ownership rights to real estate facilities, the value of the claim shall be determined based on the market value of such facilities at their location as of the date of filing the claim.

Civil-law disputes concerning ownership rights to unauthorized constructions constitute claims of a proprietary nature and are therefore subject to valuation. The disputed facility is a tangible asset and has a monetary value; consequently, its value shall be determined based on its market value.

Pursuant to subparagraph 1) of paragraph 1 of Article 610 of the Tax Code, unless otherwise provided by this paragraph, state duty on statements of claim of a proprietary nature shall be levied at the rate of 1 percent of the amount of the claim for individuals and 3 percent for legal entities.

When filing a claim for recognition of ownership rights to an unauthorized construction, the state duty shall be paid based on the value of the property, with documents confirming its market value attached to the statement of claim (an appraisal report, information certificates on the market value of the real estate).

The provisions of paragraph 1 of Article 109 of the CPC concerning the allocation of court costs by awarding them to the party in whose favor the judgment was rendered shall not apply to cases involving claims brought against a local executive body for recognition of ownership rights to an unauthorized construction. Accordingly, courts should not award the claimants’ state duty expenses against local executive bodies.

The position should be based on the premise that the claimant has chosen judicial protection of his or her rights, while the defendant in such cases has not violated the claimant’s substantive rights. The Supreme Court previously provided explanations on this issue, including in the Regulatory Resolution “On the Application by the Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases.”

These explanations have been reflected in reviews of judicial practice conducted in the regions, which may indicate their widespread application in judicial practice and the absence of difficulties for courts in this regard.

At the same time, there have been cases where courts accepted claims for proceedings and considered cases without assessing the market value of the real estate facility or where only the title page of a real estate appraisal report was available, while the analytical part of the report containing the approaches and methods used, the description, technical and structural characteristics, and other information concerning the subject of the appraisal was absent from the case materials.

Practice of Application of Substantive Law

Pursuant to Article 23 of the CPC, courts, under civil proceedings, shall consider and resolve cases concerning the protection of violated or disputed rights, freedoms and legitimate interests, unless, in accordance with the law, their protection is carried out under another procedure.

Recognition of ownership rights to an unauthorized construction through judicial proceedings is an exceptional method of protecting rights. It may be applied where the person who has applied to the court, for a reason beyond his or her control, was deprived of the opportunity to obtain title documents for a newly created or reconstructed real estate facility in accordance with the procedure established by regulatory legal acts governing relations in the field of urban planning activities and relations concerning the use of land.

Such a claim may not be used to simplify the registration of rights to a newly created real estate facility for the purpose of circumventing the provisions of special legislation establishing a permitting procedure for the creation and introduction of new immovable property into civil circulation.

Pursuant to the Law on Architecture, the construction (reconstruction, restoration, expansion, technical re-equipment, modernization, major repair) of facilities and their complexes shall be carried out on the basis of design (design and estimate) documentation (hereinafter – the design documentation), developed in accordance with detailed planning projects and development plans approved in the established procedure and prepared on the basis of the master plan of the populated area (or a substitute scheme for the development and construction of populated areas with a population of up to five thousand persons).

Pursuant to paragraph 1 of Article 63 of the Law, design documentation for the construction of new buildings and structures and their complexes shall contain an urban-planning justification for the location of the facility, as well as economic, architectural, spatial-planning, functional, technological, structural, engineering, environmental protection, energy-saving and other solutions to the extent necessary for carrying out construction and commissioning the completed facility.

Paragraphs 2 and 4 of Article 73 of the Law provide that acceptance and commissioning of a constructed facility shall be carried out by the customer upon its full readiness, in accordance with the approved design and provided that there is a declaration of conformity, conclusions on the quality of construction and installation works, and on the compliance of the completed works with the approved design.

At the same time, the full readiness of a constructed facility shall be determined in accordance with the Rules for the Organization of Development and the Passage of Permitting Procedures in the Construction Sector.

Acceptance of a constructed facility for commissioning shall be formalized by an acceptance certificate. The acceptance certificate for the constructed facility for commissioning shall be subject to approval. The acceptance certificate shall be approved by the customer. The date of signing the acceptance certificate for commissioning shall be deemed the date of its approval and the date of commissioning of the facility.

The Rules for Acceptance by the Owner of a Constructed Facility for Commissioning Independently, as well as the forms of the acceptance certificate, were approved by Order No. 867 of the Minister for Investments and Development of the Republic of Kazakhstan dated 13 December 2017.

Thus, under the provisions of the Law, owners of land plots independently carry out the acceptance for commissioning of a completed residential house. The basis for registration of rights to the constructed building is the acceptance certificate for the constructed facility for commissioning.

The procedure for acceptance of a constructed facility for commissioning and the form of the acceptance certificate for a constructed facility accepted for commissioning independently by the owner shall be approved by the authorized bodies responsible for architecture, urban planning and construction. The acceptance certificate for a constructed facility accepted for commissioning independently by the owner shall be subject to mandatory registration with local executive bodies performing functions in the fields of architecture, urban planning and construction.

It follows from the above that the owner of an unauthorized construction must apply to the authorized bodies in the fields of architecture, urban planning and construction in accordance with the procedure provided for by Chapter 9 of the Law.

If the authorized body in the field of architecture, urban planning and construction refuses to issue technical documentation confirming the compliance of the construction with the established urban-planning and construction norms and rules, the owner of the construction has the right to apply to the court to challenge the actions (inaction) of the state bodies in accordance with the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan (APPC).

Courts generally justify their decisions by referring to the provision contained in Article 244 of the Civil Code, citing the technical examination of the reliability and stability of the residential structure submitted by the claimant and the absence of any other possibility of recognizing ownership rights to the unauthorized structure.

At the same time, such cases are not subject to judicial consideration due to the absence of a dispute.

Regulatory and Legal Framework

The main regulatory legal acts governing the recognition of rights to unauthorized construction and subject to application when considering cases of this category are:

• Constitution of the Republic of Kazakhstan;
• Civil Code of the Republic of Kazakhstan (hereinafter – the Civil Code);
• Civil Procedure Code of the Republic of Kazakhstan (hereinafter – the CPC);
• Land Code of the Republic of Kazakhstan (hereinafter – the Land Code);
• Law of the Republic of Kazakhstan “On Architectural, Urban-Planning and Construction Activities in the Republic of Kazakhstan” (hereinafter – the Law on Architecture);
• Law of the Republic of Kazakhstan “On Local Government in the Republic of Kazakhstan” (hereinafter – the Law on Local Government);
• Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter – the CAO);
• Code of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget” (Tax Code) (hereinafter – the Tax Code);
• Regulatory Resolution No. 10 of the Supreme Court of the Republic of Kazakhstan dated 9 July 1999 “On Certain Issues of Application of Legislation on Ownership Rights to Housing” (hereinafter – the Regulatory Resolution “On Certain Issues of Application of Legislation on Ownership Rights to Housing”);
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated 16 July 2007 “On Certain Issues of Resolution of Disputes Related to the Protection of Ownership Rights to Housing” (hereinafter – the Regulatory Resolution “On Certain Issues of Resolution of Disputes Related to the Protection of Ownership Rights to Housing”);
• Regulatory Resolution No. 6 of the Supreme Court of the Republic of Kazakhstan dated 16 July 2007 “On Certain Issues of Application by Courts of Land Legislation” (hereinafter – the Regulatory Resolution “On Certain Issues of Application by Courts of Land Legislation”);
• Regulatory Resolution No. 9 of the Supreme Court of the Republic of Kazakhstan dated 25 December 2006 “On the Application by the Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases” (hereinafter – the Regulatory Resolution “On the Application by the Courts of the Republic of Kazakhstan of Legislation on Court Costs in Civil Cases”);
• Regulatory Resolution No. 5 of the Supreme Court of the Republic of Kazakhstan dated 29 June 2009 “On Certain Issues of Application by Courts of Legislation on Inheritance” (hereinafter – the Regulatory Resolution “On Certain Issues of Application by Courts of Legislation on Inheritance”);
• Rules for the Organization of Development and the Passage of Permitting Procedures in the Construction Sector, approved by Order No. 750 of the Minister of National Economy of the Republic of Kazakhstan dated 30 November 2015 (hereinafter – the Rules for the Organization of Development);
• Construction Norms and Rules of the Republic of Kazakhstan (SNiP RK) governing relations in the fields of architecture, urban planning and construction.

When considering disputes, the regulatory legal acts in force at the time the relevant legal relations arose shall be applied.

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