Land disputes about the termination of a land lease agreement
The State Institution "Department of Land Relations of the city of Semey, East Kazakhstan region" filed a lawsuit against the peasant farm (hereinafter – KH) "Zh", B., O., A (R), Z., Zh., K. for the termination of the land lease agreement. The claim was satisfied by the decision of the specialized interdistrict Economic Court of the East Kazakhstan region dated February 3, 2017. It was decided: to terminate the lease of the land plot dated January 26, 2012 No. 367, concluded between the State Institution "Department of Land Relations of the city of Semey of the East Kazakhstan region" and KH "Zh", B., O., A. (R), Z., Zh., K., on the provision of a state-owned land plot for temporary paid land use. A state duty in the amount of 177 tenge per person was collected from the defendants to the state revenue. By the decision of the Judicial Board for civil cases of the East Kazakhstan Regional Court dated April 25, 2017, the decision of the court of first instance remained unchanged. In the petition, the applicant, referring to the violation by the courts of the norms of substantive and procedural law, requests that the judicial acts of the first and appellate instances be annulled and the case be sent for reconsideration due to incorrect identification and clarification of the range of circumstances relevant to the case. He believes that the requirements of the legislation, as well as the terms of the lease agreement, are being respected by the land user. The Judicial Board for Civil Cases of the Supreme Court overturned the judicial acts of local courts and issued a new decision in the case to dismiss the claim of the State Institution "Department of Land Relations of the city of Semey of the East Kazakhstan region" to KH "Zh" B.,O., A. (R), Z., Zh., K. on the termination of the lease agreement of the land plot. for the following reasons. It follows from the case file that, according to resolutions of the Semey city Akimat No. 793 dated July 2, 2009 and No. 989 dated September 6, 2011, KH "Zh", B., O., A. (R), Z., Zh., K. the right of temporary paid land use was granted to a plot of land for a period of 49 years for farming, with an area of 93 hectares, including a share of 18.6 hectares in the territory of the Prirechensk rural district, the village of Prirechnoye. On January 26, 2012, based on the above-mentioned resolutions, the Land Relations Department of the City of Semey and the defendants concluded a lease agreement for land No. 367.
Land disputes about the termination of a land lease agreement
The judicial authorities, when deciding to satisfy the claim, proceeded from the circumstances that the defendants violated the requirements of Article 65 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code), which regulates the obligations of land owners and land users to use land, as well as the provisions of paragraph 3.2 of the lease agreement, which stipulates the use of land in accordance with its intended purpose. In support of the conclusions of the judicial authorities, the commission act of the land survey dated August 18, 2016, compiled by the Department of Land Relations of the city of Semey and the Akimat of the Prirechensk rural district, was presented. The above violations of the requirements of the law and the terms of the contract were recognized by the judicial authorities as significant, entailing the termination of the lease agreement. Meanwhile, the circumstances of the case have been established incompletely and incorrectly by the judicial authorities. In addition, an error was made in the application of substantive law. Thus, the non-use of a land plot for its intended purpose cannot be considered reliably established, since from the act of the State Institution "Management for Control over the Use and Protection of Lands of the East Kazakhstan region" dated October 8, 2015, No. 147, according to the results of the inspection, it is seen that the plot is used for its intended purpose, part of the plot has been plowed under crops of perennial grasses, and the other part is sown with granary and haymaking is carried out. The case file includes documents confirming the presence of 15 head of cattle, agricultural machinery, including tractors, mowers, and loaders. Article 92 of the Land Code stipulates that failure by a tenant to fulfill the obligation to use land in accordance with its purpose entails the withdrawal of the granted right. The mechanism of compulsory withdrawal is regulated by article 94 of the Land Code. Thus, the basis for the compulsory seizure of a land plot from the owner and land user is: 1) non-use for appropriate purposes during a certain period; 2) compliance with the procedure provided for in Article 94 of the Land Code (a written warning given at least 1 year before filing a claim). 3) the owner or land user has not taken the necessary measures to use such land for its intended purpose after submitting a written warning. The compulsory seizure of land plots from owners and land users, provided for in Articles 92 and 93 of the Land Code, is carried out in court at the request of the territorial land management authority of the region, the city of republican significance, the capital (hereinafter referred to as the territorial land management authorities) at the location of the land plot. At the same time, the instruction on the need to eliminate violations of the legislation of the Republic of Kazakhstan as an encumbrance of the right to a land plot is subject to state registration (paragraph 2 of Article 94 of the Land Code). Paragraph 10 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 6 "On certain issues of application of land legislation by courts" similarly explains the grounds for termination of private property rights or land use rights to land plots not used for their intended purpose. Thus, the compulsory seizure of land plots that are not used for their intended purpose entails the termination of ownership rights, land use rights and other property rights to a land plot and provides for the subsequent realization of rights to a land plot in accordance with the rules of Article 94 of the Land Code. Meanwhile, the claim for termination of the contract does not contain any requirements for termination of the right of land use with legal grounds. Consequently, in this part, the content of the lease agreement does not comply with the requirements of the law governing the special procedure for seizure, namely articles 92, 94 of the Land Code. In this regard, the application of paragraph 4.3 of the lease agreement on termination of the contract with reference to paragraph 3.2 – in connection with non-use for its intended purpose, is unlawful, as it contradicts paragraph 1 of Article 383 of the Civil Code of the Republic of Kazakhstan. These circumstances have not been properly assessed. In view of the above, the judicial board considered the conclusions of the local courts not based on the law.
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