Lawyer in Almaty for civil disputes | recognition of ownership rights | grounds for limitation of acquisition
The court considered in a preliminary court hearing a civil case on a claim in which K.A.S. to the Respondent S.K.V. THIRD PARTIES WHO DO NOT MAKE INDEPENDENT CLAIMS TO THE SUBJECT OF THE DISPUTE Akim of the Zhitikarinsky district of the State Institution "Department of Housing and Communal Services, passenger transport, highways and housing inspection office Akim Zhitikarinsky district" on recognition of ownership of real estate. In November 2012, the plaintiff concluded an agreement with the State Institution "Department of Housing and Communal Services, Passenger Transport, Highways and Housing Inspection of the Akim's office of the Zhitikarinsky district" in accordance with Article 855 of the Civil Code of the Republic of Kazakhstan (hereinafter CC) on acting in someone else's interest without instructions and she moved into an abandoned apartment at the address: the city of Zhitikara, .. neighborhood, house .., apartment 59. Ownership of this apartment is registered for S.K.V., which is listed as having been removed from registration at the place of residence in Satka, Chelyabinsk region of the Russian Federation. Since 2012, the actual ownership of the above-mentioned property has been carried out by the plaintiff. At the time of check-in, the apartment was in a broken condition. There was no heating system, hot and cold water supply, and electrical wiring. After making repairs, the plaintiff and her family moved into the apartment, signed contracts with public utilities and began to live in the apartment, bearing the burden of its maintenance. During the entire period of ownership of real estate, no claims were filed from the former owner or other persons, no one claimed ownership of the property, and no disputes arose regarding the ownership and use of real estate. At the same time, the contract with the State Institution "Department of Housing and Communal Services, Passenger Transport, Highways and Housing Inspection of the akim's office of the Zhitikarinsky district" was annually extended until 2018. Requests the court to recognize the ownership of immovable property on the grounds of the statute of limitations. Plaintiff K.A.S., plaintiff's representative Nigmetov S.D. The claims were fully supported at the hearing. They ask to recognize the ownership right due to the statute of limitations on real estate at the following address: .. The microdistrict, building 15, apartment 59 belongs to the plaintiff.
Lawyer in Almaty for civil disputes | recognition of ownership rights | grounds for limitation of acquisition
The actual place of residence of the defendant S.K.V. is unknown to the court, the court summons was served to the PKSK "Nadezhda" at the last known place of residence of the defendant S.K.V. at the address: the city of Zhitikara, ... microdistrict, house 15, apartment 59. In accordance with Article 133 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the court considers it possible to consider the case at the defendant's last known place of residence. A representative of a third party of the Akim of the Zhitikarinsky district, the State Department of Housing and Communal Services, Passenger Transport, highways and Housing Inspection of the akim's office of the Zhitikarinsky district did not appear at the court session, in the submitted response K.A.S. did not object to the stated claims, they ask to consider the case without their participation. By virtue of Article 196, part 6 of the CPC, the court considers it possible to consider this case in the absence of a representative of third parties. Having examined the written materials of the case, having listened to the participants in the process, the court comes to the following conclusion. In accordance with Article 240 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), a citizen or a legal entity who is not the owner of property, but in good faith, openly and continuously owns real estate as their own for 7 years, or other property for at least five years, acquires ownership of this property (statute of limitations). According to the response of the department of the Zhitikarinsky district for registration and land cadastre of the branch of the NAO "State Corporation "Government for Citizens" in Kostanay region dated September 11, 2020, ownership of real estate located at the address: city of Zhitikar, .. microdistrict, house 15, apartment 59 was registered for S.K.V. on the basis of the donation agreement No. 3339 dated August 19, 1994.
The court found that the owner of the disputed immovable property, S.K.V., had left it without intending to retain her rights to it, and the local executive body, in order to preserve the housing stock, provided it for the plaintiff to live in. By virtue of Article 242, paragraph 3 of the Civil Code, Article 23, paragraph 2 of the Law of the Republic of Kazakhstan "On State Property", ownerless immovable property owned by citizens or non-governmental legal entities that own such property as their own cannot be registered and transferred to communal ownership. Thus, this ownership of an apartment cannot be considered based on a contract or other title, and it does not exclude the possibility of recognizing ownership by virtue of the statute of limitations. The evidence that the plaintiff honestly, openly and continuously owns the dwelling as his own is both the testimony of the plaintiff himself and the certificates of payment for utilities attached to the statement of claim. The actions of the plaintiff, who restored the property and bears the burden of its maintenance instead of the owner, attests to her good faith. The fact of her continuous ownership and residence in the disputed dwelling is also confirmed by the testimony of witnesses K.T.V., I.N.L., who explained that they were the plaintiff's neighbors. The disputed apartment at the time of K.A.S.'s settlement in 2012 was abandoned, after a fire, in a broken condition, there were no windows, floors, communications system, light. The plaintiff restored the apartment before moving in, having made repairs and still lives in it with her family. Thus, the plaintiff has been permanently residing in this apartment for more than 7 years. During her stay, she had no real estate dispute with anyone, no one claimed the apartment, no complaints were expressed. K.A.S. bears the burden of maintenance, pays for utilities, openly in good faith and continuously owns the property as his own. In such circumstances, the court considers the claim to be satisfied. The plaintiff does not insist on reimbursement of court costs incurred in connection with the appeal to the court.
Guided by Articles 223-226 of the CPC, the court DECIDED: To satisfy the claim of K.A.S. to S.K.V. for recognition of ownership rights by virtue of the statute of limitations. To recognize for K.A.S. the ownership right to immovable property located at the address: Kostanay region, Zhitikarinsky district, city of Zhitikara, .. microdistrict, house .., apartment 59, registered for S.K.V.
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