On coercion to adopt a favorable administrative act on recognition of those in need of housing with the appointment of current housing payments according to the report
No. 6001-24-00-6ap/3245 dated April 01, 2025
Plaintiff: S.G.
Respondent: Russian State Institution "Department of the Penal Enforcement System of the Committee of the Penal Enforcement System of the Ministry of Internal Affairs of the Republic of Kazakhstan" (hereinafter referred to as the Department)
The subject of the dispute: the compulsion to adopt a favorable administrative act recognizing those in need of housing with the appointment of current housing payments according to the report
Review of the defendant's cassation complaint PLOT:
By order of the Plaintiff Department, starting from September 15, 2023, the plaintiff was appointed to the position of senior operative for particularly important cases of the Department's operational department. His work experience in law enforcement agencies is more than 15 years.
Earlier, on February 27, 2019, the plaintiff purchased a 3-room apartment with a total area of 69.4 sq. m., a living area of 41.8 sq.m. (apartment 1) under a purchase and sale agreement.
According to the terms of the agreement, the plaintiff purchased the above–mentioned real estate for 9,000,000 tenge, which he paid as follows: 500,000 tenge from his own funds before signing this agreement, the remaining amount of 8,500,000 tenge - after receiving a loan from JSC Bank based on notifications dated February 26, 2019 after registration in accordance with the established procedure. the present apartment purchase and sale agreement, the pledge agreement and the submission of relevant documents to the Bank.
On March 1, 2019, a bank loan agreement (DBZ) was concluded between the Bank and the plaintiff (an interim housing loan followed by a transfer to a housing loan). Apartment 1 was provided by the plaintiff as collateral to ensure proper fulfillment of its obligations to the Bank.
On February 27, 2019, ownership of the immovable property (apartment 1) was registered by the authorized state body for the plaintiff.
On April 20, 2021, under the contract of sale, apartment 1 was sold by the plaintiff for 15,000,000 tenge.
On April 29, 2021, under the contract of sale, the plaintiff purchased a 4-room apartment with a total area of 84.1 sq.m., including residential
with an area of 52.7 sq.m. (apartment 2).
According to the terms of the agreement, he purchased the apartment for 15,000,000 tenge, of which money in the amount of 3,000,000 tenge is paid by the buyer upon signing this agreement, the remaining money in the amount of 12,000,000 tenge - after receiving a loan from the branch of Bank2 JSC (Bank2), which will be issued on the basis of a letter of guarantee dated 29 April 2021.
On April 30, 2021, the state registration of ownership of apartment 2 for the plaintiff was carried out in accordance with the procedure established by law.
On May 12, 2021, a DBZ was concluded between Bank2 and the plaintiff, according to which the borrower was granted a bank loan for the purchase of secondary housing in the amount of 12,000,000 tenge for a period of 180 months for 12
May 2036.
On May 12, 2021, a real estate pledge agreement was concluded between Bank2 (the mortgagee) and the plaintiff (the mortgagor), according to which the mortgagor provided the mortgagee with immovable property in the form of apartment 2 to ensure proper fulfillment of its obligations to the Bank under the DBZ.
The plaintiff's family consists of 6 people (2 adults, 4 children: sons born in 2003, 2005, 2018 and a daughter born in 2016, children of different sexes), the spouse is a disabled person of the third group due to a general illness with 55% disability, as well as a mother with many children.
On January 4, 2024, the plaintiff filed a report with the housing commission of the Department on recognition of his need for housing and the appointment of a residence permit due to the fact that he has a valid mortgage loan for the purchase of apartment 2. He also pointed out the circumstances of the purchase of apartment 1 under a mortgage loan, which was realized with early repayment of the mortgage loan, as there was a need to increase the living space (according to the norms, 18 square meters per person are required, non-compliance with sanitary standards provided for in paragraph 1 of Article 75 of the Law: the composition of the family has changed with the expansion, the children are of different sexes).
On February 8, 2024, by a decision of the housing commission of the Department, the plaintiff was denied registration of him and his family members as needing housing and housing payments on the basis of subparagraph 5) of paragraph 3 of Article 101-3 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law) (employees of the internal affairs bodies are denied recognition as needing housing if they or their spouses have alienated a habitable dwelling in the locality in which they serve during the last five years, except in the case when their spouses had a dwelling before marriage. In this case, the alienation of a share of less than fifty percent in the dwelling is not taken into account).
According to the Bank's certificate dated April 12, 2024, it follows that the balance of the plaintiff's loan debt to the Bank under the DBZ is 11 019985.16 tenge.
The plaintiff, disagreeing with the commission's decision, appealed to the court with a claim to compel the defendant to adopt a favorable administrative act on the specified report, referring to the fact that the obligation under the mortgage loan agreement was not fulfilled, and therefore, subparagraph 1) of paragraph 1 of Article 101-3 of the Law applies to him.
Judicial acts:
1st instance: the claim is satisfied.
The Department is charged with the duty to adopt a favorable act recognizing the plaintiff as in need of housing with the appointment of housing payments according to the report.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case have been annulled, with the adoption of a new decision to dismiss the claim.
Conclusions: by virtue of subparagraph 5) of paragraph 3 of Article 101-3 of the Law, employees of the internal affairs bodies are denied recognition as needing housing if they or their spouses have alienated habitable housing in the locality in which they serve during the last five years, except in the case when their spouses had housing before joining into marriage. In this case, the alienation of a share of less than fifty percent in the dwelling is not taken into account.
According to paragraph 1 of Article 101-11 of the Law, employees of the internal affairs bodies exercise their right to housing from the date they are recognized as needing housing in accordance with the procedure established by this chapter by providing official housing or transferring housing payments to employees who fall under the category of positions of employees of internal affairs bodies who are entitled to receive housing payments, unless otherwise provided provided for in parts two and three of this paragraph.
It follows from these provisions of the Law that the realization of the right to housing by law enforcement officers is possible only if they are recognized as needing housing. Accordingly, the realization of the right to receive housing payments arises from the date of recognition of these employees in need of housing.
The case materials established that on April 20, 2021, the plaintiff, under the contract of sale, alienated a habitable dwelling previously acquired under a mortgage loan. Consequently, a five-year period has not passed since the alienation to recognize the plaintiff as in need of housing.
The conclusions of the local courts that the existing housing did not meet the established standards of usable space per person
for the plaintiff's family, he was forced to purchase a new home with a mortgage in order to meet the need for more space, which the board considers untenable.
In the case under consideration, paragraph 1 of Article 75 of the Law, which states that a dwelling from the state housing stock or a dwelling rented by a local executive body in a private housing stock is provided in the amount of at least fifteen square meters and no more than eighteen square meters of usable space per person is not applicable, since the plaintiff did not receive apartment No. 1. from the state housing fund, this apartment belonged to the plaintiff by right of ownership, respectively, the living area of the apartment was chosen by the plaintiff independently.
Thus, there are no legal grounds for recognizing the plaintiff as in need of housing and the appointment of a residence permit, respectively, the arguments of the claim are untenable.
The courts' misinterpretation and application of substantive law, as well as the inconsistency of the conclusions of the courts set out in the judicial acts with the circumstances of the case, led to an unjustified decision on the dispute.
In such circumstances, the judicial board concluded that there were no grounds for satisfying the claims.
Considering that the case does not require the collection and additional verification of evidence, the judicial board considered it necessary to cancel the contested judicial acts and make a new decision to dismiss the claim in full.
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.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
