Lawyer Lawyer for land disputes Forced seizure of land plots

Forced seizure of land plots that are not used for their intended purpose or used in violation of the legislation of the Republic of Kazakhstan For the forced seizure of land plots that are not used for their intended purpose or used in violation of the legislation of the Republic of Kazakhstan, it is required: 1) the conditions of withdrawal provided for in Articles 92, 93 of the Land Code; 2) compliance with the procedure provided for in Article 94 of the Land Code. It should be borne in mind that at the time of making a written warning in accordance with paragraph 2 of Article 94 of the Land Code, conditions must arise for the seizure of the land plot (non-use during the period specified in paragraph 1 of Article 92 of the Land Code) and only after one year after making a written warning, the Land Inspectorate has the right to file a claim with the court. The basis for the compulsory seizure of a land plot from the owner and land user is: 1) not being used 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.

Lawyer Lawyer for land disputes Forced seizure of land plots

Attention should be paid to the following amendments to the Land Code: 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). The central authorized body maintains a register of persons from whom land plots have been forcibly seized. The provision of land plots to individuals and legal entities listed in the said register is not allowed (Article 96-1 of the Land Code). The compulsory seizure of a land plot that is not used for its intended purpose and has not been developed does not apply to a land plot owned by orphaned children, children left without parental care, before reaching the age of majority. When considering this category of disputes, compliance with the established procedure for compulsory withdrawal by the authorized body is subject to verification. Example. The State Institution "Department of Land Relations and Control over the Use and Protection of Astana city Lands" filed a lawsuit against "H" LLP for the compulsory seizure of a land plot that is not used for its intended purpose. By the decision of the Council of Economic and Social Council of Astana dated May 26, 2016, the claim was satisfied on the grounds that the land plot with an area of 11,0587 hectares, with the intended purpose "for the construction and operation of a shopping center" has not been developed and has not been used by the defendant for its intended purpose for more than 8 years. The warning order issued by the State Department based on the results of the inspection dated February 5, 2015, was not executed by the defendant and, according to the survey act dated March 17, 2016, work on the development of the land plot by the defendant has not begun. Meanwhile, the court's decision was overturned on appeal with the referral of the case for a new hearing in view of the following.

It was established that the land plot was pledged to the company "S", which was not involved in the case. That is, the court resolved the issue of the rights and obligations of persons who were not involved in the case, while it was reliably known about the existing encumbrances on the disputed land plot. In violation of the requirements of part 1 of Article 94 of the Land Code, the mortgagee was not notified of the commencement of the procedure for the seizure of the land plot. The authorized body did not send a notification on the beginning of the procedure for the seizure of the land plot to the mortgagee. When considering a civil case on the claim of the State Institution "Department of Land Relations and Control over the use and Protection of lands of Astana city" to LLP "A" for the seizure of a land plot with an area of 8, 0014 hectares, with the intended purpose of "construction and operation of a production base", it was established that the warning order was handed to the owner on June 17, 2015, According to the act of the field survey of the use of the land plot, as of June 18, 2016, no work was carried out on the construction and operation of the production base. At the same time, the defendant presented evidence to the court that he had repeatedly applied to the local executive body for a permit to design a production base, however, by the protocol decision of the commission for the provision of land in Astana dated April 2, 2014, and subsequently by the resolution of the Akimat dated February 20, 2015, this land plot was provided to the State "Department of Natural Resources and Environmental Management of Astana" for conducting surveys and works on the construction of industrial and civil facilities.

Lawyer Lawyer for land disputes Forced seizure of land plots

Taking into account the above, the court concluded that the defendant was unable to use the land belonging to him for its intended purpose, while taking the necessary measures to use the land, and the plaintiff did not provide evidence to the contrary to the court. The court refused to satisfy the plaintiff's claims. The reason for the refusal to satisfy the claims of the authorized body in a number of cases was the failure of the plaintiff to establish the actual owner, since during the consideration of the case it became clear that the defendant was not the owner of the land plot at the time the case was considered in court. These circumstances indicate not only the improper performance by the authorized bodies of their functional duties, but also the poor quality of the preparation of the case by the courts for trial. The inconsistency and inconsistency of the actions of the authorized bodies for the regulation of land relations can be traced in the civil case on the claim of the State Institution "Management of Land Relations and Control over the use and Protection of land in Astana" to "K" LLP for the forced seizure of a land plot not used for its intended purpose. By the decision of the Council of Economic and Social Council of Astana dated February 17, 2015, the claim was satisfied. The court's decision remained unchanged by the court of appeal. Meanwhile, the defendant submitted evidence of the development of the land plot to the court of cassation. Thus, by the decree of the Akim of Astana dated May 5, 2015, LLP "K" was allowed to complete the design of the shopping center, in pursuance of the said decree of the akim, an agreement dated May 5, 2015 was concluded between the defendant and the State Institution "Department of Architecture and Urban Planning of Astana" on the conditions for the development of land for civil and industrial construction. The above-mentioned permits were issued after the court's decision of February 17, 2015, which ordered the compulsory seizure of a land plot from the defendant that had not been used for its intended purpose for more than 9 years. On this occasion, the cassation board of the Astana City Court issued a private resolution addressed to government agencies. As a problematic issue that arises when resolving cases of this category, the courts, in particular the Akmola Regional Court, indicate the absence of a provision in the Code of Administrative Offences of the Republic of Kazakhstan (hereinafter referred to as the Administrative Code) providing for liability for non–use of land for its intended purpose. Whereas, by virtue of paragraph 2 of Article 94 of the Land Code, a claim for the compulsory seizure of a land plot in the case provided for in Articles 92 and 93 of the Land Code is filed after the application of the penalties provided for in the Administrative Code and after the expiration of the prescription given to the owner of the land plot or the 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.

 It follows from the content of the above-mentioned provision of the law that the filing of a claim in accordance with Articles 92, 93 of the Land Code is possible only after the application of penalties provided for in the Administrative Code and after the expiration of the prescription. The norms existing in the Administrative Code, namely Articles 338, 339, provide for liability for the irrational use or non-use of agricultural land and for non-fulfillment of obligations by land owners and land users on the use of land. The absence of a norm in the Administrative Code providing for liability for non-use of a land plot for its intended purpose is certainly a gap that needs to be filled. To date, cases of this category should be resolved in the absence of a resolution on bringing the owner of the land plot and the land user to administrative responsibility, taking into account other evidence provided by the parties. The courts of the republic began to receive claims from district departments of land relations against owners and land users for the termination of contracts of sale (lease) of land plots due to non-use for its intended purpose or with use in violation of the legislation of the Republic of Kazakhstan. As a rule, claims for termination of the contract are cited with reference to Article 401 of the Civil Code in connection with significant violations by the defendant of its terms. According to the West Kazakhstan Regional Court, local executive authorities are thus trying to deprive owners (land users) of land plots without much effort and as soon as possible. Meanwhile, as mentioned above, the compulsory seizure of land plots from land owners and land users, provided for in Articles 92 and 93 of this Code, 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. Consequently, if there are requirements for termination of the contract of sale (lease) on the grounds of articles 92, 93 of the Land Code, the courts should proceed from the requirements provided for by a special law when making a decision and apply exclusively the procedure for compulsory seizure from the owner and land user of a land plot that is not used for its intended purpose or used in violation of the legislation of the Republic of Kazakhstan. The procedure for the seizure of a land plot provides for compliance with certain deadlines and procedures, and requires the provision of certain evidence. Such requirements are usually not included in the terms of the purchase and sale (lease) agreement. Therefore, termination of the contract in the above situation can accelerate and simplify the termination of the right of land use, that is, to aggravate the situation of the land user. Comparing these legal relations, it seems correct to terminate the right of land use in case of misuse of land in accordance with special norms – articles 92, 94 of the Land Code. In addition, paragraphs 3 and 4 of Article 94 of the Land Code regulate the procedure for the subsequent sale of land, providing for the sale of ownership or land use rights at auction. Thus, paragraph 4 of Article 94 of the Land Code provides for the procedure for executing a court decision on the compulsory seizure of a land plot, according to which, in the event of the compulsory seizure of a land plot from the owner or land user by a court decision on the grounds specified in Articles 92 and 93 of the Code, ownership of the land plot or the right of land use (in relation to those purchased from the state lease rights to a land plot) is sold at auction (contests, auctions) in accordance with the procedure established by the Legislation of the Russian Federation., established by the civil procedure and executive legislation of the Republic of Kazakhstan.

If a land plot or land use right acts as a security for an obligation (for example, a loan), then upon the seizure of such a land plot and its subsequent sale, the pledge in respect of this property is terminated, the pledgee acquires the right to pre-empt satisfaction of his claim from the amount of compensation due to the pledgor. In some regions, there has been an increase in the number of cases of invalidation of land use pledge agreements in the absence of State consent. When challenging the pledge agreement, the following arguments are given. Thus, a land user receives a large loan from a credit institution (usually second-tier banks), and in order to ensure the fulfillment of obligations under the loan agreement, he provides collateral for a land plot of which he is not the owner. In case of non-fulfillment of obligations under the loan agreement, the pledgor practically does not incur property losses. In this case, the value of collateral as a way to ensure the fulfillment of an obligation is leveled. The subsequent realization by a credit institution of the pledged object, the right of land use to a land plot, actually entails the redistribution of land plots without the knowledge of the owner, the state. According to the current legislation, the consent of the land inspectorate or other government agency is not required to conclude a pledge agreement. The norms of land legislation defining the procedure for the pledge of land plots and land use rights do not contain such a requirement. The need for the consent of the landowner to pledge the right of land use granted on a long-term lease is not spelled out.  Thus, paragraph 3 of Article 77 of the Land Code stipulates that the pledge of the right of temporary long-term land use in the form of a lease of a land plot is allowed for the duration of the lease agreement. Thus, the law provides the land user with the right to transfer the right of temporary paid long-term land use to the land as collateral. Judicial practice shows that the courts of the Akmola region reject a claim to challenge the pledge agreement on the above grounds. Thus, the claim of the akim of the Astrakhan district of the Akmola region against LLP "K", LLP "A", JSC "B" for invalidation of the pledge agreement was refused on the grounds that the defendants did not violate the requirements of current legislation when pledging land use rights to land plots. At the same time, this court, when analyzing the established judicial practice, appropriately raises the question of how well the transfer of the non-purchased land use right to land plots without the consent of the state corresponds to the spirit of the law. In this regard, it should be noted that the transfer and alienation of land use rights in accordance with paragraph 1 of Article 33 of the Land Code can only be carried out by persons who have purchased the right to temporary paid land use (lease). To resolve this issue, it is necessary to amend the land legislation.

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