Objection Response to the Plaintiff's Appeal against the court's decision On compulsory alienation for State needs of Determining the amount of compensation for the seized real estate and land
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To the Appeal Board for Civil Cases of the Almaty City Court
Almaty, 050000 Kazybek Bi street, 66. 0201@sud.kz
From the defendants: ______________ IIN: ______________ Address: ______________
IIN ______________ Address: ______________
IIN ______________ Address: ______________
Representative by proxy: Law Company Law and Law LLP
BIN 19024002907 1 Almaty, Medeu district,050002, Abylai Khan ave.,
79, office 304. info@zakonpravo.kz / www.zakonpravo .kz + 7 (708) 578 57 58.
OBJECTION
on the appeal of the Akimat of Almaty against the decision of the Zhetysu District Court of Almaty dated November 05, 20__
November 05, 20__, Zhetysu District Court of Almaty, composed of the presiding judge ______________., with the participation of a representative of the plaintiff, a representative of the defendants ______________., having considered the civil case in open court the case №______________ according to the claim of the Akimat of Almaty (Hereinafter referred to as the Plaintiff) to ______________ ( Further, the Defendants) On: 1) compulsory alienation of a share of a land plot for state needs; 2) Definitions the amount of compensation for the share of the land plot forcibly alienated for state needs; 3) The compulsory termination of ownership; 4) Eviction of the Defendants from a land plot with an area of 0.0363 ha and a part of a residential building with an area of 58.4 sq.m. located at: ______________, cadastral number ______________, owned by ______________.
Having examined the case materials, having heard the explanations of the parties, in their entirety, having determined the range of circumstances relevant for the proper resolution of the case, the Court decided to partially satisfy the Claim of the Akimat of Almaty. In satisfaction of the claim of the Akimat of Almaty regarding the determination of the amount of compensation for shares of a land plot with an area of 0.0363 hectares and a part of a residential building located at the address of: ______________, cadastral number ______________in total ______________ tenge – to refuse. Determine the amount of compensation for the share of a land plot with an area of 0.0363 hectares and a part of a residential building with an area of 58.4 square meters located at the address forcibly alienated for state needs.: __________________, cadastral number ________________, in total ________________ tenge for subsequent payment ________________.
Objection Response to the Plaintiff's Appeal against the court's decision On compulsory alienation for State needs of Determining the amount of compensation for the seized real estate and land
Disagreeing with the court's decision, the Plaintiff filed an appeal with the arguments indicated in the complaint. Dear Board of Appeal of the Almaty City Court, we consider the Decision of November 05, 20__ of the Zhetysu District Court of Almaty to be lawful and justified according to all Legal Norms and the norms of substantive and procedural law, the rules of the Civil and Civil Procedure Code of the Republic of Kazakhstan were correctly applied by the court. However, despite all the third-party consideration by the court of the evidence provided by the parties, the Plaintiff motivates his complaint as follows: By a court decision, the Akimat of Almaty does not agree with the determination of the price for the land plot, considers it unreasonable and illegal in this part on the following grounds.
The plaintiff provided a report on the valuation of real estate by an independent appraiser of LLP ________________ dated 28.08.20__, according to which the market value of the seized real estate is ___________ tenge. The defendant submitted to the court a report on the assessment of the LLP ________________ dated 17.06.20__ with a clearly inflated market value of this seized object in 29,946,782 tenge. The court, without substantiation, submitted by the plaintiff to the Akimat, the report on the assessment of CPI Grand Project LLP dated 08/28/20__. for the amount of ________________ tenge considered that they did not comply with the legislation on valuation activities and could not be accepted by the court, so he attracted a specialist in the field of valuation activities of LLP ___________ to make another one the valuation report, according to which the market value of the seized property has already been __________ tenge. Thus, the court did not study and did not give an appropriate assessment to the available assessment reports, did not establish the range of circumstances relevant to the case, the court had to try to independently establish the objective value of the disputed property in accordance with the law by examining and giving a proper assessment to these evidences, which was not done, as a result, the Court mistakenly took as a basis an overestimated valuation of the LLP _________ without giving a full and reasoned explanation of this decision, and without substantiating why the assessment report submitted by the plaintiff is unacceptable evidence in the case And accordingly requests the Board, the decision of the Zhetysu District Court of Almaty dated 05.11.20__ of the year should be changed, canceling the determination of the price for the purchased land and house in the amount of _____ tenge. Monetary compensation for the Defendants should be determined in the amount of ___________ tenge. We do not agree with the above Arguments of the Plaintiff, since the Appeal, as well as the Statement of Claim, are unfounded and do not have any supporting facts as required by the CPC RK. According to article 26 of the Constitution of the Republic of Kazakhstan, no one can be deprived of his property, except by a court decision. Compulsory alienation of property for state needs in exceptional cases provided for by law may be carried out on condition of its equivalent compensation. By virtue of Article 67 of the Law "On State Property", the value of a land plot, as well as immovable property located on a land plot alienated for state needs, is determined in the amount of their market value, regardless of the grounds for the rights to the land plot.
The market value of the alienated land plot or other immovable property in connection with the seizure of the land plot for state needs is determined by the appraiser on the date of the assessment, taking into account the provisions of paragraph 1 of Article 208 of this Law. The amount of compensation is determined in accordance with paragraphs 4 and 5 of Article 9 of the Civil Code of the Republic of Kazakhstan based on the value of property and losses in full caused to the owner or non-governmental land user as a result of the forced alienation of land for state needs and (or) caused by the early termination of performance by the owner or non-governmental land user obligations to third parties. The amount of compensation is determined in tenge. According to P. 1 of Article 208 of the above-mentioned Law, when assessing a land plot or other immovable property alienated for state needs in connection with seizure for state needs, the market value of this property shall be determined without taking into account its change as a result of the adoption of the resolution specified in paragraph 2 of Article 63 of this Law.
In accordance with paragraph 12 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of the application by courts of legislation on the compulsory alienation of land for state needs", when examining reports, written consultations of specialists and other documents related to valuation activities, courts should check them for compliance with the provisions of regulatory legal acts providing for the procedure, standard and methodology estimates based on the market value of a land plot (land use rights), housing construction, and other real estate objects, as well as other property subject to valuation. At the same time, it should be borne in mind that the amount of monetary compensation for a forcibly alienated land plot cannot be determined based on its regulatory or cadastral price, since they do not reflect the market value of the land plot, except in cases provided for in paragraph 2 of Article 67 of the Law on State Property.
According to paragraph 11 of the Requirements for the form and content of the assessment report approved by the Order of the Minister of Finance of the Republic of Kazakhstan dated May 3, 2018 No. 501, the total value of the valuation item indicated in the assessment report is recognized as recommended for the purposes of making a transaction with valuation items if from the date of the assessment report to the date of the transaction with the valuation item or the date of submission of the public offer has passed no more than six months. By that time, the Plaintiff needs to read page 2 reports on the assessment of disputed real estate of the LLP ___________ dated 08/28/20__, according to which the market value of the seized property was ___________ tenge, where it is indicated "the total value of the valuation object indicated in the valuation report is recognized recommended for the purposes of making a transaction with valuation objects, if no more than six months have passed from the date of drawing up the valuation report to the date of making the transaction with the valuation object or the date of submitting the public offer," hence the unfounded arguments indicated in the Appeal. Evaluation report of a specialist in the field of LLP evaluation activities ___________ according to which the market value of the seized property has already been ___________ tenge This report reflects the actual value of real estate purchased for government needs.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
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