Land disputes over the compulsory seizure of a land plot
The compulsory seizure of land plots provided for in Articles 92 and 93 of the CC, in accordance with paragraphs 1 and 2 of Article 94 of the CC, is carried out in court at the request of the bodies exercising state control over the use and protection of land at the location of the land plot of the State Institution "Directorate for Control over the Use and Protection of Land of the East Kazakhstan Region" (hereinafter – Management) filed a lawsuit against individual entrepreneur (hereinafter referred to as IP) N. for the compulsory seizure of a land plot with an area of 0.4554 hectares, cadastral number 05-085-097-1087. The claim is motivated by the fact that the defendant did not comply with the order dated June 5, 2018 on the use of the land plot in accordance with its intended purpose for one year, while more than three years have passed since its initial provision. By the decision of the specialized interdistrict economic Court of the East Kazakhstan region dated December 10, 2020, the claim was satisfied. By a decision of the judicial board for Civil Cases of the East Kazakhstan Regional Court dated March 19, 2021, the court's decision was overturned with a new decision rejecting the claim.
The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. It follows from the materials of the civil case that by the decree of the Akimat of Ust-Kamenogorsk dated January 16, 2006, LLP "L" was granted the right of private ownership to a land plot of 0.5 hectares in the educational and communal area of the left-bank part of the city of Ust-Kamenogorsk for the design, construction and placement of multi-storey residential buildings. The land plot was assigned the cadastral number 05-085-097-190, and an act of private ownership was issued on May 4, 2006. LLP "L" sold the land plot under a purchase and sale agreement dated February 28, 2007 to LLP "B", which was issued an act on the right of private ownership of the land plot dated May 7, 2007. By the order of the State Institution "Department of Land Relations of the city of Ust-Kamenogorsk" dated July 25, 2008, the land plot was registered as ownerless property, since LLP "B" had not used the land plot for a long time since the acquisition. By a court decision dated December 15, 2011, at the request of the akim of the city of Ust-Kamenogorsk, the land plot was recognized as having entered communal ownership. By the decree of the Akimat of Ust-Kamenogorsk dated April 15, 2013, a list of sites with a specific purpose and an initial cost for bidding (auctions) using the English method was determined. This list includes a land plot with an area of 0.4554 hectares, cadastral number 05-085-097-1087, located at: Kanysh Satpayev Avenue, East Kazakhstan region, Ust-Kamenogorsk, opposite residential building No. 22, with a purpose for the design, construction and placement of a restaurant and shop. Previously, before entering the outline of the land plot, he partially occupied a 0.5-hectare plot of land in the educational and communal area of the left-bank part of the city of Ust-Kamenogorsk for the design, construction and placement of multi-storey residential buildings. This land plot was sold at auction to E., about which a purchase and sale agreement dated May 8, 2013 was concluded with the Department of Land Relations of the City of Ust-Kamenogorsk.
By the decree of the Akimat of Ust-Kamenogorsk dated October 6, 2014, water protection zones and water protection strips of small rivers and streams and the regime of their economic use were established. According to the purchase and sale agreement dated January 27, 2018, E. the land plot was sold to defendant N. The location of most of the land plot in the water protection zone - 0.2851 ha - is not disputed by the parties. The Court of first instance, satisfying the plaintiff's claims, found that the disputed land plot was neither acquired by the defendant from the moment of purchase under the purchase agreement dated January 27, 2018, nor by the previous owner E. Since 2013, it has not been used for its intended purpose, and therefore, in accordance with paragraph 2 of Article 92 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the CC), it is subject to compulsory withdrawal. At the same time, there were no obstacles to the use of the land for its intended purpose (a ban on the construction and operation of buildings and structures), namely, its part that does not belong to the water protection zone, both for the construction of a store and for the construction of a restaurant, subject to the availability of agreed design documentation and compliance with water protection measures. In addition, it should be borne in mind that these facilities do not belong to structures that negatively affect water quality. The appeals board, overturning the decision of the court of first instance, concluded that the defendant was not guilty of not using the land plot for its intended purpose and failing to comply with the relevant order, the prematurity and unreasonableness of the claims, which is the basis for rejecting the claim. The judicial board of the Supreme Court considered these conclusions of the court of Appeal to be untenable, unconfirmed by the evidence examined in the case, based on the incorrect application of substantive law. Thus, the compulsory seizure of land plots provided for in Articles 92 and 93 of the CC, according to paragraphs 1 and 2 of Article 94 of the CC, is carried out in court at the request of the authorities exercising state control over the use and protection of land at the location of the land plot. A claim for the compulsory seizure of a land plot in the cases provided for in Articles 92 and 93 of the CC is filed after the application of penalties in accordance with the requirements of the Code of Administrative Offences of the Republic of Kazakhstan and after the expiration of the prescription given to the owner of the land plot or land user to take measures to use the land plot for its intended purpose and to eliminate violations of the legislation of the Republic of Kazakhstan.
During the trial, it was established that the order on the need to use the land for its intended purpose was issued on June 5, 2018, handed over to the land user on September 24, 2019, and registered as an encumbrance with the registration authority on October 7, 2019. The fact that the land user received the notification on September 24, 2019 is not disputed. After the expiration of the one-year period specified by law for the execution of the notification, a visit and inspection of the land plot has been carried out. The act of September 28, 2020, drawn up with the participation of a third party - the State Institution "Department of Land Relations, Architecture and Urban Planning of the city of Ust-Kamenogorsk", established the fact of non-fulfillment of the notification on the use of the land for its intended purpose. This circumstance was the basis for filing a claim for the compulsory seizure of the land plot. Having examined the above-mentioned evidence, the court of first instance, correctly applying the rules of law, came to the conclusions about the legality of filing a claim by the Office after the expiration of the prescription, calculating the one-year period from the date of its delivery to the land user, the absence of a provision in the law on administrative responsibility for this violation, the plaintiff's compliance with the procedure and procedure for compulsory seizure of land in connection with its non-use for the intended purpose for more than three years, the absence of obstacles for the defendant to use the land for its intended purpose, including the part that does not relate to the water protection zone, the possibility of obtaining the necessary permits in compliance with water protection measures. According to all the arguments of the defendant, the court of first instance also gave a reasonable legal assessment. In turn, the court of appeal, having misinterpreted the law, not taking into account the compliance of the procedure carried out by the plaintiff with the requirements of the law, the existence of grounds for the compulsory seizure of the land, unlawfully overturned the decision of the court of first instance, refused to satisfy the claim. The conclusions of the court of appeal that obtaining technical specifications for connecting the projected facilities to engineering communications is impossible due to the lack of available and affordable capacities, which hinders the development of design estimates, are not based on the case materials and established circumstances and contradict the provisions of water legislation. Thus, the third party of the State Institution "Department of Land Relations, Architecture and Urban Planning of the city of Ust-Kamenogorsk" in its review pointed out the validity of refusals to issue APS due to the failure to submit a complete set of documents.
In the opinion of the judicial board of the Supreme Court, the defendant's arguments in this part are untenable, not supported by reliable evidence. In addition, on the part of the defendant, the actions (inaction) of the authorized bodies have not been challenged in court. Article 125 of the Water Code of the Republic of Kazakhstan prohibits the construction and operation of buildings and structures, with the exception of water management and water intake structures and their communications, bridges, bridge structures, berths, ports, piers and other transport infrastructure related to the activities of water transport, commercial fishing, fisheries technological reservoirs, facilities for the use of renewable energy sources (hydrodynamic energy of water), as well as recreational areas on a water body, without the construction of buildings and structures for leisure and (or) recreational purposes, only within water protection zones.
Land disputes over the compulsory seizure of a land plot
According to paragraphs 3-7 of this article, the design, construction and placement of new facilities on water bodies and (or) water protection zones (except for water protection strips) are coordinated with basin inspections, the authorized state body in the field of environmental protection, the authorized body for the study of mineral resources, the state body in the field of sanitary and epidemiological welfare of the population, the authorized body in the field of veterinary, local executive bodies of the region (cities of republican significance, the capital). The approval procedure is determined by the rules for the organization of development and the passage of licensing procedures in the field of construction, approved in accordance with the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities. Projects for the construction of new facilities, the use of which may have a negative impact on the condition of water bodies, should provide for closed (drainless) technical water supply systems. Projects for the construction of transport or engineering communications through the territory of water bodies should provide for measures to ensure the passage of flood waters, the mode of operation of water bodies, the prevention of pollution, clogging and depletion of waters, and the prevention of their harmful effects. These projects are subject to coordination with basin inspections, the authorized state body in the field of environmental protection, the authorized body for the study of mineral resources, the state body in the field of sanitary and epidemiological welfare of the population, the authorized body in the field of energy supply.
In water protection zones and strips, the construction of buildings, structures and communications is prohibited without the availability of projects agreed upon in accordance with the procedure established by the legislation of the Republic of Kazakhstan and which have received a positive conclusion from a comprehensive non-departmental expert examination of construction projects (feasibility studies, design estimates), including the conclusions of industry expertise. An analysis of the above-mentioned provisions of the law provides grounds for concluding that there are no obstacles in obtaining the necessary package of documents, including APS, construction projects, and technical conditions while observing water protection measures. The construction itself is not prohibited by law, since construction facilities such as a store and restaurant, when used for their intended purpose, are not structures that negatively affect water quality. Thus, in compliance with the requirements of water legislation on the construction of an object in a water protection zone, the defendant had no obstacles to using the land for its intended purpose. In addition, the conclusion of the court of appeal on the illegality of putting the land up for auction also contradicts the established circumstances and case materials.
Thus, by the decree of the Akimat of Ust-Kamenogorsk dated April 15, 2013, a list of sites with a specific purpose and an initial cost for bidding (auctions) using the English method was determined. This list includes a land plot with an area of 0.4554 hectares, cadastral number 05-085-097-1087, located at: Kanysh Satpayev Avenue, East Kazakhstan region, Ust-Kamenogorsk, opposite residential building No. 22, with a purpose for the design, construction and placement of a restaurant and shop. The resolution of the local executive body complies with the requirements of the law, in particular, Article 48 of the CC. The court of appeal incorrectly applied paragraph 3-1 of Article 92 of the CC to the legal relations of the parties, and the introduction of a state of emergency in the Republic of Kazakhstan was assessed as force majeure and, in the opinion of the appeals board, the one-year period does not include the duration of the state of emergency. However, there is no written evidence in the case file from the defendant about contacting the plaintiff to change the period of validity of the order due to the inability to execute the order during its validity period.
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