Improvements in the property recognized as the common shared property of the plaintiff and the defendant were made during their joint life. The norms of the articles of the Civil Code governing the legal relations of the parties in someone else's interest without instructions are not applicable to this dispute.
P. filed a lawsuit against M. and O. to recover the amount. The claim was dismissed in full by the decision of the Yenbekshinsky District Court of Shymkent on June 18, 2013. By the decision of the Appellate Judicial Board for Civil and Administrative Cases of the South Kazakhstan Regional Court dated August 9, 2013, the court's decision remained unchanged. The cassation court overturned the judicial acts issued in the case regarding the denial of P.'s claim to M. for the recovery of the amount. In this part, a new decision was made to satisfy the claim and recover from M. in favor of P. 1,594,430 tenge and court costs – 15,944 tenge. The rest of the judicial acts remained unchanged. In the petition, M., referring to a violation of the norms of substantive and procedural law, asked to cancel the decision of the cassation board, pointing out that the courts of the first and appellate instances made the decision on the basis of the decision of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan dated January 11, 2013, which established that M. and P. lived together in as members of the same family at the address: Shymkent city, E. Street, and beyond. the right to a half share in the specified property is recognized, taking into account its contribution to the purchase and renovation of the house. Therefore, it is illegal to collect half of the repair fee from him again.
The response to the petition has not been submitted. Having studied the case materials, the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court of the Republic of Kazakhstan overturned the decision of the Cassation Judicial Board of the South Kazakhstan Regional Court dated December 4, 2013 regarding the satisfaction of the claim. The decision of the Yenbekshinsky District Court of Shymkent dated June 18, 2013 and the decision of the Appellate Judicial Board for Civil and Administrative Cases of the South Kazakhstan Regional Court dated August 9, 2013 were upheld as follows. P. filed a lawsuit against O. and M. to recover the amount, arguing that on September 7, 2002, together with her former common–law spouse, M., she purchased a house building located at the address: Shymkent, Ye Street (hereinafter referred to as the disputed property) for 6,500 US dollars, of which 4,700 US dollars were invested by her. By judicial acts, the disputed property is recognized as the common shared property of M. and P., and the ownership right to a half share is recognized for it.
Improvements in the property recognized as the common shared property of the plaintiff and the defendant were made during their joint life. The norms of the articles of the Civil Code governing the legal relations of the parties in someone else's interest without instructions are not applicable to this dispute.
The plaintiff, referring to the conclusion of LLP "Expert Consulting Appraisal Company" dated April 17, 2012 No. 172, according to which the estimated value of the disputed housing construction is 8,111,000 tenge, and the cost of the work performed is 3,188,860 tenge, believes that the defendants should reimburse her for half of the costs incurred to improve the condition of housing construction in the amount of 1 594,430 tenge. In rejecting the claim, the court of first instance, on the basis of part two of Article 71 of the CPC on the prejudice of the decision of the Yenbekshinsky District Court of Shymkent dated June 20, 2012 on the previously considered civil case on the claim of O. to P. for eviction and the counterclaim of P. to O., M. on the recognition of the donation agreement invalid, recognition of the general shared ownership and the determination of the share in housing construction, was guided by the circumstances established by judicial acts that M. I. P., who had been in an unregistered marital relationship since 1997, lived permanently in the housing estate they acquired in 2002 as members of the same family, carried out joint maintenance of property and household management, equipped, rebuilt and repaired the housing estate for more than 9 years.
These circumstances served as the basis for recognizing P.'s ownership right to a half share in the disputed property, recognizing the donation agreement between M. and his daughter O. as invalid and refusing to evict P. At the same time, the conclusion of Expert Consulting Appraisal Enterprise LLP dated April 17, 2012 No. 172, to which the plaintiff refers in the present case, was The subject of the study is a previously reviewed civil case, and the judicial authorities have given it a proper legal assessment. For P. Ownership of half of the disputed property has been recognized, the value of which is determined taking into account the improvements made. Agreeing with the conclusions of the court of first instance, the appellate instance proceeded from the fact that since all the improvements were made during the joint life of the plaintiff and the defendant as members of the same family, their shares in the common property were determined equal in value, taking into account all investments that consist of a contribution of money for the purchase and repair of a house, and an agreement establishing the procedure for using the common property or providing for the obligations of the defendant M. If there is no compensation for the costs of repairing the house to the plaintiff, then the plaintiff's claims are unfounded. The Cassation Judicial Board, having annulled the judicial acts of the first and appellate instances, concluded that it was necessary to apply to the plaintiff's claim the provisions of paragraph 1 of Article 859 of the Civil Code, according to which a person acting in someone else's interest is subject to compensation for expenses and losses incurred by him in connection with actions that were taken after receiving approval from the interested person, the rules of the relevant type of contract. Meanwhile, these conclusions of the cassation board are based on the incorrect application of substantive law and do not correspond to the circumstances established in the case due to the following.
According to paragraphs 1 and 2 of Article 211 of the Civil Code, a participant in shared ownership who has made inseparable improvements at his own expense, in compliance with the established procedure for using common property, has the right to a corresponding increase in his share in the right to common property. Separable improvements to the common property, unless otherwise provided for by an agreement of the participants in shared ownership, shall become the property of the participant who made them. Since the improvements in the property recognized by the common shared ownership of P. and M., produced during the joint life of the plaintiff and the defendant as members of the same family, the norms of Articles 855, 857, 858 and 859 of the Civil Code, regulating the legal relations of the parties in someone else's interest without instructions, referred to by the cassation board, are not applicable to this dispute. Thus, the conclusions of the courts of the first and appellate instances on the absence of grounds for satisfaction of the claim are justified, the norms of substantive law to be applied in this case were applied correctly by these courts, therefore, the court of cassation had no grounds to cancel the judicial acts issued in the case.
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