Land dispute lawyer The division of a land plot in kind is one of the ways to terminate the right of common ownership when several new objects of ownership arise on the basis of one object.
According to paragraph 3 of Article 53 of the Land Code, a land plot may be jointly owned with the definition of the share of each of the owners (shared ownership) or without the definition of shares (joint ownership). By virtue of Article 218 of the Civil Code, if the participants in shared ownership fail to reach an agreement on the method and conditions of dividing common property or allocating a share of one of them, the participant in shared ownership has the right to demand the allocation of his share in kind from the common property. It can be seen from the content of this article that when dividing land plots, courts should proceed from the size of the parties' shares in the right of common ownership, and only as an exception is it permissible to deviate from the size of the shares. In the latter case, the disproportionality of the division is eliminated by paying the appropriate amount of money or other compensation. However, regardless of one order or another, the division of a land plot is possible under the condition of divisibility, i.e. when each of its parts forms independent land plots with the same permitted use regime. Since, according to paragraph 1 of Article 59 of the Land Code, if a land plot is recognized as indivisible, its division and allocation of a land share in kind are not allowed.
Land dispute lawyer The division of a land plot in kind is one of the ways to terminate the right of common ownership when several new objects of ownership arise on the basis of one object.
By the decision of the district court No. 2 of the Almaly court of Almaty, left unchanged by the courts of appeal and cassation instances, the claim of Sh. to A. on the division of the land plot, according to actual use, was denied. The court motivated the refusal precisely by the fact that in the acts on the right of private ownership of the land owned by the plaintiff and the defendant, the land is indivisible. The courts should bear in mind that in such cases, the court may be allowed to require the determination of the order of use of the land. During the generalization, the facts were established when an indivisible land plot was recognized as divisible by the court. For example, the decision of the cassation judicial board of the Aktobe Regional Court overturned the decision of the Aktobe city Court and the decision of the appellate judicial board on K.'s claim to the State Institution "Department of Architecture and Urban Planning of Aktobe" on recognizing the land plot as divisible and dividing it with the termination of the proceedings. Canceling the decision and the appeal decision, the board pointed out that according to article 51 of the Land Code, a land plot can be divisible and indivisible. A divisible land plot is one that, without changing its intended purpose and without violating fire, sanitary, environmental, construction and other mandatory norms and rules, can be divided into parts, each of which forms an independent plot after division, otherwise it is indivisible. The indivisibility of the land plot is reflected in the document certifying the right to the land plot. It was established that on the basis of the decree of the Akimat of Aktobe No. 1402 dated July 09, 2004, K. The right of ownership to a plot of land for personal farming with the status of indivisible is presented. In accordance with subparagraph 5) of paragraph 1 of Article 14-1 of the Land Code, the determination of the divisibility and indivisibility of land belongs to the exclusive competence of the authorized body on land relations - a structural subdivision of local executive bodies of the region, the city of republican significance, the capital, the district, the city of regional significance, performing functions in the field of land relations. Consequently, no authorities, including judicial ones, have the right to compel a state body, as it is done in the contested judicial act, to divide the specified land plot into two independent plots. Thus, the courts of the first and appellate instances considered a claim that is not subject to consideration in civil proceedings, which, in accordance with subparagraph 1) of Article 247 of the CPC, was the basis for termination of the proceedings.
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