Objection to the statement of claim of the Akimat on compulsory alienation (purchase) of land and real estate for state needs
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To the Nauryzbay District Court of Almaty, N.M. Kaliev.
Almaty, md. "Shugyla" 222/1 8 (727) 333-13-55, 8 (727) 333-13-54, ext.nom 727-4760 727-4760@sud.kz
from the Defendant: K.O.N. IIN ... Almaty, Nauryzbay district,
050006, microdistrict ..., 2, apartment 2
Proxy representative: Law and Law Law Company LLP
BIN 190240029071 Almaty, Zhibek Zholy ave., 50, office 202, Business center "Quarter"
info@zakonpravo.kz / www.zakonpravo.kz + 7 727 978 5755; +7 708 578 5758
Objection to the statement of claim
on compulsory alienation (purchase) of a land plot and other immovable property for state needs
Q, you have a civil case No.7585-19-00-2/4675 dated 17.07.2019 on the claim of the KSU "Department of Land Relations of the city of Almaty" (hereinafter referred to as the Plaintiff). to the defendant, Mr. K.O.N. (hereinafter referred to as the Defendant) on the compulsory alienation (purchase) of a land plot and other immovable property for state needs. According to which the Plaintiff motivates his claims that, In order to implement the General Plan of Almaty, approved by the Decree of the Government of the Republic of Kazakhstan dated 12/19/2002. No. 1330, based on the resolution of the Akimat of Almaty "On the commencement of compulsory alienation of land plots or other immovable property in connection with the seizure of land for state needs" dated 28.02.2019 No. 1/1-284, in accordance with subparagraph 4 of paragraph 2 of Article 84 of the Land Code of the Republic of Kazakhstan, for the construction of an electric transport facility, compulsory alienation The cadastral land plot No. 20-322-006-633 with an area of 0.1444 hectares and a residential building with an area of 251 square meters are subject to purchase for state needs. at the address: Almaty, Nauryzbay district, mkr. ..., house 2, sq.2. Pursuant to the above-mentioned resolution, in accordance with the legislation, on 11.03.2019, the defendant received a notification of the impending alienation of the land plot for state needs, as evidenced by the signature in the notification.
Objection to the statement of claim of the Akimat on compulsory alienation (purchase) of land and real estate for state needs
In accordance with paragraph 2 of Article 67 of the Law of the Republic of Kazakhstan "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. According to the report on the assessment of the market value of real estate by Capital Assessment Group LLP dated 04/17/2019, the market value of the seized real estate is 116,909,447 tenge (including: 42,519,353 tenge – the market value of the land plot; 74,390,094 tenge is the market value of an apartment building). The defendant was offered compensation for the land and house that were forcibly alienated for state needs, but so far no purchase agreement has been concluded for state needs, and no agreement on the purchase price has been reached, which was the basis for applying to the court. Thus, He asks the court:
To make compulsory alienation for state needs of a land plot cadastral No. 20-322-006-633 with an area of 0.1444 hectares and a residential building with an area of 251 sq.m. at the address: Almaty, Nauryzbay district, md., house 2, sq.2, belonging to. O.N..
To determine the amount of compensation for a land plot and an apartment building forcibly alienated for state needs at the address: Almaty, Nauryzbaysky district, house 2, sq.2, in the amount of 116,909,447 tenge for subsequent payment to K.O.N..
Forcibly terminate K.O.N.'s ownership right to a land plot and a residential building at the address: Almaty, Nauryzbay district, md., house 2, sq.2.
Evict K.O.N. with all cohabiting persons from the occupied land plot and residential building at the address: Almaty, Nauryzbay district, mkr. Zh., house 2, sq.2.
We do not agree with the above arguments of the Plaintiff, since a civil law agreement was concluded in accordance with Articles 150-151 of the Civil Code of the Republic of Kazakhstan (Transactions made under the condition, the Form of the transaction), Pursuant to which the Defendant concluded on 06/28/2016 with gr. Derisheva Ekaterina Vladimirovna Purchase and sale agreement for an apartment building with a land plot in installments. According to P. 2 of the agreement, the value of the house and plot is set at 375,000,000 tenge, including the house 295,296,000 tenge and the plot 79,704,000 tenge, and the payment of this amount is carried out no later than two calendar years from the date of signing this agreement and after the Buyer and Seller undertake to notarize the transaction where the witness was gr. Yassin Malikovich Uzakov, born on 10/08/1948, Personal Identification number 031919685. On the day of the conclusion of the contract, the buyer (the defendant in this case) paid the first installment in the amount of 135,000,000 tenge, followed by 5 more amounts from 2016 to 2018, namely: 60 000 000 – 21 November 2016, 46 000 000 – 14 March 2017, 50 000 000 – 3 July 2017, 51 000 000 – 10 October 2017, 33 000 000 – 9 March 2018, for which there are all supporting receipts. After that, on April 30, 2018, a transaction with a similar value for a land plot and a house was notarized. Prior to the transaction in 2016, according to the Law of the Republic of Kazakhstan on Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan dated July 16, 2001, individuals and legal entities of the Republic of Kazakhstan have the right to complete, timely and reliable information about the state of the habitat and vital activity, its expected changes, planned architectural, urban planning and construction activities.
In this regard, the metro had to inform about the projected facilities, the state of the habitat and vital activity and the expected changes in it, directly affecting public and private interests. Kuznetsova O.N. and Derisheva E.V., addressed to the Akim of Almaty and the Municipal State Enterprise under the right of economic management of the Akimat of Almaty "Metropolitan" dated June 9, 2016 No.23-08/923, a letter was sent asking "In connection with the punching of the ave. Abaya in Almaty in the western direction to the Kalkaman microdistrict, the construction of the metro and other projects whether the house at the address Almaty, Kalkaman MKRN, Zhaily MKRN, house 2 kv 2 falls under demolition and/or seizure of land. If so, when? Another application was submitted on 13.06.2016 with a request to give a more complete answer, which means "does not fall under the construction of the main structures and does the house strictly fall under demolition?" According to the Law of the Republic of Kazakhstan On the Procedure for Considering Appeals from Individuals and Legal Entities, Article 9. Consideration of appeals from individuals and legal entities it is stipulated that officials within their competence: 1) ensure objective, comprehensive and timely consideration of appeals from individuals and legal entities, if necessary with their participation; 2) take measures aimed at restoring violated rights and freedoms of individuals and legal entities; 3) inform applicants about the results of consideration of their appeals and the measures taken.;
Objection to the statement of claim of the Akimat on compulsory alienation (purchase) of land and real estate for state needs
To which positive responses were received from the authorized bodies as follows: "According to the General Plan of the city of Almaty, design and estimate documentation has now been developed for the punching of Abai Ave. from Momyshuly St. to the city border. The land plot with housing construction, located at the address: Almaty, Kalkaman-2 mkr. Zhd.2, sq. 2, is located in the technical zone of the prospective metro line according to the SNiP of the Republic of Kazakhstan 3.03-02-2010 "Subways", but does not fall under the construction of the main subway structures, i.e. is not subject to demolition." Article 10. Responses to appeals above mentioned Law stipulated:Responses to appeals must be well-founded and motivated in the official language or the language of the appeal with reference to the legislation of the Republic of Kazakhstan, contain specific facts refuting or confirming the applicant's arguments, explaining their right to appeal the decision. After that, gr. CO.N., based on this official comprehensive response of the KGP "Metropolitan" CO.N. A decision was made to purchase a house and a purchase and sale agreement was signed on 06/28/2016, fully relying on letters from authorized authorities.
To which positive responses were received from the authorized bodies as follows: "According to the General Plan of the city of Almaty, design and estimate documentation has now been developed for the punching of Abai Ave. from Momyshuly St. to the city border. The land plot with housing construction, located at the address: Almaty, Kalkaman-2 mkr. Zhd.2, sq. 2, is located in the technical zone of the prospective metro line according to the SNiP of the Republic of Kazakhstan 3.03-02-2010 "Subways", but does not fall under the construction of the main subway structures, i.e. is not subject to demolition." Article 10. Responses to appeals above mentioned Law stipulated:Responses to appeals must be well-founded and motivated in the official language or the language of the appeal with reference to the legislation of the Republic of Kazakhstan, contain specific facts refuting or confirming the applicant's arguments, explaining their right to appeal the decision. After that, gr. CO.N., based on this official comprehensive response of the KGP "Metropolitan" CO.N. A decision was made to purchase a house and a purchase and sale agreement was signed on 06/28/2016, fully relying on letters from authorized authorities.
Thus, Dear court, we ask you to pay special attention to the violation of the legislation of the Republic of Kazakhstan on the procedure for considering appeals from individuals and legal entities where the plaintiff's statement of claim is based on the need to implement the General Plan of Almaty, approved by the Decree of the Government of the Republic of Kazakhstan dated December 19, 2002 No. 1330. At the time of issuing the official response from the Metropolitan Police, this plan was in effect, as it is obvious at the moment, respectively, the answer that the house is not subject to demolition is valid in the same way. How it turns out that different answers are given on the basis of the same master Plan is not clear to us, and authorized government agencies make such grave mistakes, where the owner of the house simply suffers and suffers losses. Article 17. The Law provides for liability for violation of the legislation of the Republic of Kazakhstan on the procedure for considering appeals from individuals and legal entities, which entails liability in accordance with the laws of the Republic of Kazakhstan. Due to the violation of the above-mentioned article in the Code of the Republic of Kazakhstan on Administrative Offences art. 100, entails a fine on officials in the amount of ten monthly calculation indices, as well as according to the Law of the Republic of Kazakhstan "On the Civil Service of the Republic of Kazakhstan", art. 43, "Responsibility of civil servants", For failure to perform or improper performance of their official duties, civil servants bear civil, disciplinary, administrative, criminal liability in accordance with with the laws of the Republic of Kazakhstan. We would also like to draw the Court's attention to the fact that the value of the sale of the house according to the Purchase Agreement, in terms of the dollar exchange rate, is equal to the historical value of the house, which amounted to 120,000,000 tenge in 2008 (confirmed by the Purchase Agreement of the house on 11/14/2008). Thus, in November 2008, the exchange rate was 120.13 tenge per 1 dollar, and in April 2016 – 339.10, in June 2018 – 330 tenge, which is confirmed by a certificate from the official website of the NBK. https://www.nationalbank.kz/?docid=748&switch=russian ) as well as the attached documents obtained from the official website of the National Bank of the Republic of Kazakhstan. Thus, the exchange rate increased 2.8 times and, as you know, real estate transactions are always linked to the dollar exchange rate. In the period from 2014 to 2015, the house was gasified, a boiler room was built and the house was rebuilt in accordance with the technical requirements, which in no way detracted from, but kept the market value of the object at the same level.
At the same time, the Auezovsky district was reorganized into the Nauryzbaysky district, which entailed the re-registration of real estate, the reissue of documents, the conduct of technical, seismic, fire examinations, topography, accompanied by a large expenditure of time and money of the owner. The defendant planned her future, invested heavily in real estate, got into debt, carried out landscaping of the site, and throughout the entire time financed the development of the town's infrastructure through monthly payments for the maintenance of autonomous electric power, water, sewer networks, roads, and other common facilities of the cottage town. It is unclear what caused the sudden decision to demolish a house that had not previously been demolished in connection with the construction of the subway. Subsequent 04 March 2019, we received notification from the KSU Department of land for the city of Almaty and the Decision of Akim of Almaty No. 4/371-185 dated June 18, 2009 where it was given to us In order to implement the General plan of Almaty on the basis of resolution of the akimat of Almaty "On the beginning of the forced alienation of land or other immovable property in connection with the seizure of land for state needs" from 28.02.2019, No. 1/1-284, our land and placed it on the real property at the following address: Almaty, Nauryzbay district, Zhaily microdistrict, 2, apartment 2 (20-322-006-633) is subject to compulsory alienation, including through foreclosure, for state needs, as well as the need to provide access to real estate for evaluation.
Objection to the statement of claim of the Akimat on compulsory alienation (purchase) of land and real estate for state needs
On April 17, 2019, specialists of the Capital Assessment Group LLP Assessment Companies conducted a survey of a residential building and a land plot. At the end of May 2019, we received an assessment report No. F19-0120/ALM dated April 17, 2019, compiled by Capital Assessment Group LLP, from the KSU Department of Land Relations of the city of Almaty, where the market value of real estate owned by gr. Kuznetsova O.N., in the form of: an apartment building with a total area of 251 sq.m., with a land plot with a total area of 0.1444 ha., cadastral number: 20:322:006:633. located in Almaty, Nauryzbay district, Zhaily microdistrict, 2, apartment 2, amounted to 116,909,447 tenge. We do not agree with the assessment of the appraisal companies of Capital Assessment Group LLP, as the market value of real estate indicated in the report No. F19-0120/ALM dated April 17, 2019 of the appraisal companies is incorrectly and unreliably determined, as well as unfairly underestimated, since each apartment located in this area is individual and requires a detailed approach. Thus, having studied the provided copy of the report on the assessment of the alienated property, we came to the following conclusion. According to the Law of the Republic of Kazakhstan "On Valuation Activities", the market value is the most likely price at which a given object can be disposed of on the basis of a transaction in a competitive environment. At the same time, the actual market price can be determined only if one of the parties to the transaction is not obligated to alienate the valuation object, and the other party is not obligated to acquire, and when there was no coercion to make a transaction with respect to the parties to the transaction from anyone. According to the Order of the Minister of Finance of the Republic of Kazakhstan dated May 5, 2018 No. 519 on the approval of Evaluation Standards, the comparative approach provides for the following sequence of evaluation procedures: 1) collecting and analyzing information on the sale or offer of similar real estate and determining the objects of comparison; 2) choosing a method for calculating the value of the object of evaluation, taking into account the volume and reliability of the available information; 3) comparing the object of evaluation with the objects of comparison, followed by adjusting the sale price or the offer price of the objects of comparison; 4) determining the value of the valuation object by taking into account the amount of corrective adjustments to the value of the comparison objects; 5) agreeing on the calculation results obtained. At the same time, in the analyzed report, as part of the cost calculation using the comparative approach, there is no justification for the applied adjustments (amendments) with the objects of comparison. In addition, in accordance with the requirements of the Valuation Standard, the report does not provide a detailed calculation of the cost of the object, limiting itself to the data indicated in the calculation table of the report, which is a violation of the requirements of the valuation standard. When deducing the total cost, there is no justification for giving weight coefficients to the results obtained by the comparative method, and the hierarchy analysis method recommended in the methodological literature has not been used.
According to the Valuation Standard, it is indicated that the amount of accumulated depreciation of real estate is equal to the totality of physical, functional and external (economic) depreciation. When deducing the total cost, the appraiser did not specify the percentage of depreciation of the premises, since when evaluating property with physical wear and tear, the appraiser is obliged to take note of the specified coefficient. Special attention in this assessment report requires the design of: - 3 – page report in Chapter 1.3. Information about the appraiser – there are no qualification characteristics and the Appraiser has indicated himself as an Expert appraiser, whereas today the Authorized bodies issue an appraiser's Certificate, in order to be an Expert it is necessary to pass qualification exams and obtain the appropriate Certificates that are recommended in the Evaluation materials. - 4 – page in Chapter 1.5, The list of documents used by appraisers, the appraiser indicated the International Standards of Assessment, 2013 is not correct, whereas on the day of the assessment there were already International Standards of Assessment, 2017., There is no list of assessment standards, manuals, textbooks and other materials related to assessment. - There are too many gaps in the assessment without dashes, which is a gross violation of the design of the Report. - 11 – page Chapter 3.2, the Cost Approach table was applied in the Justification "In the cost approach, the comparative unit method was applied using modern reference materials from CO-INVEST, aggregated indicators of the cost of construction of the UPSS" However, the Appraiser also incorrectly forgot to indicate that it is necessary to calculate and indicate the market value of the Land plot. - 24 - page in the table, the Appraiser indicates how, when evaluating the House, he selected analogues to the object of assessment in that area, the selected analogues are not correct, since the selected analogues are much inferior in area to the object of assessment, the analogues of houses by the years of construction are also incorrectly selected. Dear court, the market is very large and there are dozens of offers for the sale of houses.
The residential district of Zhaily, Nauryzbai district belongs to the category of elite districts of Almaty as there are all communications, a security system (security, fencing, video surveillance, etc.), sports playgrounds, recreation areas and walks, and much more for a comfortable and safe stay. But unfortunately, when selecting similar houses, the appraiser treated them formally, as he selected Atypical houses that did not belong to residential cottage towns, but simply selected houses that did not belong to fenced, well-maintained cottage towns. - In the assessment, when determining the estimated value, there is no Test for the comparability of the Land plot also in page 27, the cost and comparative methods are calculated with coefficients of 0.50%, while the cost should be 30% and the Comparative 70%. In connection with the above, we believe that in this case there is a low-quality and biased assessment. The main principles of evaluation activities are objectivity and reliability, which is not respected during the evaluation. These violations affect the interests of gr. CO. N., since the valuation is carried out on property by right of ownership for alienation in favor of the state in conditions of market prices. In accordance with Article 257 of the CPC, upon termination of ownership, property is assessed based on its market value. In this case, we believe that a poor-quality and biased assessment affects our interests. In this regard, we had a RCD. Almaty has submitted an alternative report on the valuation of real estate for No. 70/2019 dated June 10, 2019, carried out by the Valuation Institute LLP, which determines the market value of real estate in the amount of 228,734,302 tenge, we consider it reliable and fair, the market value indicated in it corresponds to the real value of the alienated property. According to Article 255, the Civil Procedure Code of the Republic of Kazakhstan "Termination of ownership of immovable property in connection with the seizure of land and other natural resources" provides for: Termination of ownership of real estate in connection with a decision of a state body not directly aimed at seizing property from the owner, including a decision to seize the land on which the owned the owner of a house, other buildings, structures or plantings is allowed only in cases and in accordance with the procedure established by legislative acts., with the presentation of equivalent property to the owner and compensation for other losses incurred or compensation in full for losses caused by the termination of ownership rights.
Objection to the statement of claim of the Akimat on compulsory alienation (purchase) of land and real estate for state needs
If the owner does not agree with the decision entailing the termination of the ownership right, it cannot be carried out until the dispute is resolved in court. When considering a dispute, all issues of compensation to the owner for damages are also resolved. The rules of this article shall apply accordingly upon termination of ownership of immovable property in connection with a decision of a state body to seize mining allotments, sections of the water area and other areas where the property is located. We also sent a corresponding request to the NGO "Kazakhstan Federation of Real Estate", which is reputable not only in the Republic of Kazakhstan but also internationally in the field of sale and valuation of real estate for marketing analysis by specialists of the NGO Kazakhstan Federation of Real Estate (CFN). To which we received a reasoned response from the CFN as follows: "To your request dated 06.06.2019. The specialists of the Kazakhstan Federation of Real Estate (CFN) conducted a marketing analysis to date in the sector of individual residential buildings in the Nauryzbai district of the southern capital in the sector of cottage towns. As a result of the study, it was found that the average offer price for the purchase and sale of residential buildings with a total area of 250-340 sq.m., the size of a land plot of 7-15 acres, with outbuildings, is 744 900,00 - 955 000,00 tenge per 1 sq.m. Exchange rate (NBK) on 06/20/2019 $1 = 382.38 tenge. Total Average cost per 1 sq.m. = ($ 2 208+$ 2 574+$ 3 782+$ 2 452+$ 2421+$ 2 199)16-% 2 706 = rounded up 1,033,692.00 tenge". (For more information, see the report of the NGO CFN). Whereas the appraisal company "Valuation Institute" LLP, which determines the market value of the alienated property in the amount of 228,734,302 tenge, determines the average cost per 1 sq.m. in the amount of 936,516 tenge, which logically corresponds to the average cost of the alienated property. However, in the Assessment Report No.F19-0120/ALM dated April 17, 2019, produced by the Capital Assessment Group LLP, where the average cost per 1 sq.m is determined. 297,164 tenge and the total value of 116,909,447 tenge certainly shows its underestimation in determining the estimated value of the alienated property. By virtue of the above arguments, we consider it possible to adopt the Assessment Report No. 70/2019 dated June 10, 2019, carried out by the Valuation Institute LLP, which determines the market value of the alienated property in the amount of 228,734,302 tenge, as the basis for establishing the market value of the alienated property located at the address Almaty, Nauryzbay district, residential district of..., 2, apartment 2. And the amount indicated in the Valuation Report of the Valuation Institute LLP in the amount of 228,734,302 tenge, which is a more realistic market value, would be fair to take as the current market value for the alienated real estate. Article 6. "Interpretation of the norms of civil legislation" stipulates that the norms of civil legislation must be interpreted in accordance with the literal meaning of their verbal expression. If there are possible different understandings of the words used in the text of legislative norms, preference is given to an understanding that corresponds to the provisions of the Constitution of the Republic of Kazakhstan and the basic principles of civil legislation set out in this chapter, primarily in its Article 2. 2. When clarifying the exact meaning of the norm of civil legislation, it is necessary to take into account the historical conditions under which it was put into effect, and its interpretation in judicial practice, if this does not violate the requirements set out in paragraph 1 of this article. Article 68 of the CPC RK. "Evaluation of evidence" states that each piece of evidence is subject to evaluation based on relevance, admissibility, reliability, and all the evidence collected together is sufficient to resolve a civil case. In this civil case, we observe that the evidence provided is unfounded. Article 72 of the CPC RK. The "Duty of Proof" stipulates that each party must prove the circumstances to which it refers as the basis of its claims – which is not observed in the statement of claim. Article 73 of the CPC RK. "Presentation of evidence", evidence is presented by the parties and other persons involved in the case to the court of first instance at the stage of preparing the case for trial. In accordance with Article 8 of the CPC, everyone has the right to apply to the court for protection of violated or disputed constitutional rights, freedoms or protected interests. In accordance with Article 15 of the Civil Procedure Code of the Republic of Kazakhstan, the parties choose their position, ways and means of defending it independently and independently of the court, other bodies and persons during civil proceedings. The Universal Declaration of Human Rights (articles 7, 8 and 10), the International Covenant on Civil and Political Rights (article 14) and the Convention for the Protection of Human Rights and Fundamental Freedoms (article 6) establish that everyone is equal before the law and the courts and that everyone has the right to a fair trial in determining their civil rights and duties. and the public hearing of the case within a reasonable time by a competent, independent and impartial court established by law. Based on the above and guided by Articles 166, 46 of the CPC RK,
I ask the Court:
I ask the Court:
The claims of the KSU "Department of Land Relations of the city of Almaty" to gr. K.O.N. on the compulsory alienation (purchase) of land and other immovable property for state needs must be partially satisfied;
Regarding the determination of the amount of compensation for a land plot and an apartment building forcibly alienated for state needs at the address: Almaty, Nauryzbay district, district 2, building 2, sq.2, in the amount of 116,909,447 tenge for subsequent payment to Kuznetsova Olga Nikolaevna, to refuse satisfaction;
To determine the amount of compensation for a land plot and an apartment building forcibly alienated for state needs at the address: Almaty, Nauryzbay district, district 2, building 2, sq.2, according to the real estate valuation report No. 70/2019 dated June 07, 2019, carried out by the Valuation Institute LLP, where the market value is determined real estate in the amount of 228,734,302 tenge for subsequent payment to Kuznetsova Olga Nikolaevna.
Sincerely, General Director of Law Company Law and Law LLP" _____________/ Kayshybekov M.E. "___" ____________2019 the year.
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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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