Land disputes Forced seizure of land plots from owners and land users  

Akimat of Akzhar district of North Kazakhstan region filed a lawsuit against the limited liability company "M" (hereinafter – LLP) for termination of the lease agreement. By the ruling of the specialized interdistrict Economic Court of the North Kazakhstan region dated April 26, 2017, the statement of claim regarding the collection of rent arrears was left without consideration due to the withdrawal of the claim. The claim was satisfied by the decision of the specialized interdistrict Economic Court of the North Kazakhstan region dated April 26, 2017. It was decided: to terminate the lease of the land plot dated February 6, 2006 No. 90, concluded between the akimat of Akzhar district of the North Kazakhstan region and LLP "M". Court costs have been distributed. By the decision of the Judicial Board for Civil Cases of the North Kazakhstan Regional Court dated July 13, 2017, the court's decision remained unchanged. 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 Akimat of Akzhar district of North Kazakhstan region to LLP "M" for termination of the lease agreement on the following grounds.

Land disputes Forced seizure of land plots from owners and land users  

It follows from the case file that by Resolution No. 481 of the Akimat of Akzhar district dated September 21, 2005, M LLP was granted the right of temporary shared land use (lease) for a land plot for a period of 49 years in Kenashchinsky rural district, with a total area of 7,906 hectares, including 7,510 hectares of arable land. On February 6, 2006, Agreement No. 90 (hereinafter referred to as the Agreement) on the lease of the above–mentioned land plot was concluded between M LLP and the Akimat of Akzhar district. On September 3, 2012, M LLP and the state institution (hereinafter referred to as the State institution) "Department of Land Relations of the Akzhar district of the North Kazakhstan region" concluded an additional agreement No. 284 to the Contract. Claiming termination of the lease agreement, the plaintiff argued that the defendant had significantly violated the terms of the agreement, which resulted in late payment of rent and non-use of the land for its intended purpose. The courts, when deciding to satisfy the claim, agreed with the plaintiff's arguments, relying on the existence of sufficient legal grounds for termination of the contract. The application of the provisions of the law on amendment and termination of the contract of property lease (lease) of state property, with reference to Article 401 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), by judicial authorities was regarded as a way chosen by the plaintiff to protect the rights and legitimate interests. The judicial board recognized this position of the local courts as erroneous. The Judicial Board pointed out that the circumstances of the case had been fully and correctly established by the courts, but an error had been made in the application of substantive law. Article 81 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code) provides grounds for termination of land use rights. Termination of the land lease agreement due to a significant violation of the terms of the agreement is not stipulated in the above provision. Moreover, according to subparagraph 2 of paragraph 3 of Article 81 of the Land Code, the right of land use may be terminated due to the early termination of a lease agreement or a temporary gratuitous land use agreement, except in cases where the land plot is pledged. Meanwhile, according to the real estate pledge agreement dated April 30, 2009, the right of temporary paid land use (lease) for the disputed land plot was pledged to JSC "B" (now JSC "K") in order to ensure fulfillment of obligations under the bank loan agreement. In this regard, the termination of the lease agreement with reference to violations of the clauses of the agreements obliging the timely payment of rent and the use of the land for its intended purpose is unlawful, since it contradicts paragraph 1 of Article 383 of the Civil Code.

That is, 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. Taking into account the above-mentioned provisions of the law governing the grounds for termination of land use rights, late payment of rent may result in debt collection, including through judicial proceedings, while non-use of a land plot for its intended purpose entails compulsory seizure in compliance with the procedure established by law. Thus, 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. 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 the land plot and provides for the subsequent realization of rights to the land plot in accordance with the rules of Article 94 of the Land Code.

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