On declaring illegal and canceling the decision of the housing commission to refuse registration as a person in need of housing and the appointment of housing payments, on forcing the adoption of a favorable administrative act on registration as a person in need of housing and the appointment of housing payments
No. 6001-25-00-6ap/222 dated May 27, 2025
Plaintiff: N.A.
Respondent: GU "Police Department of the Regional Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan" (hereinafter referred to as the Department)
The subject of the dispute: on the recognition as illegal and cancellation of the decision of the housing commission on the refusal to register as a person in need of housing and the appointment of housing payments, on the compulsion to adopt a favorable administrative act on registration as a person in need of housing and the appointment of housing payments
Review of the defendant's cassation complaint PLOT:
N.A. has been an employee of the internal affairs bodies since 2005, as an assistant to the duty receiver-distributor of the Police Department since November 2016.
According to the bank loan agreement concluded between JSC Bank and the plaintiff's spouse dated February 28, 2022, the latter, with the consent of the spouse, acquired real estate under a mortgage agreement dated February 25, 2022, namely an apartment. Under the specified bank loan agreement, according to the application for accession, the plaintiff is a co-borrower.
The bank loan is granted for a period of 72 months, that is, until September 5, 2029.
In fulfillment of the mortgage loan, the specified real estate is provided to the Bank as collateral.
According to the certificate of absence (availability) of real estate, the apartment is registered with the plaintiff as a common joint property.
In March 2024, the plaintiff filed a report with the Police Department on the assignment of housing payments to him.
By the decision of the defendant's housing commission dated April 30, 2024, the recognition of N.A. in need of housing and the appointment of housing payments was refused.
The reason for the refusal to recognize those in need of housing and the appointment of housing payments was the alienation by the plaintiff of a habitable apartment under a purchase and sale agreement dated February 8, 2022.
Judicial acts:
1st instance: the claim is satisfied.
The decision of the housing commission of the Police Department dated April 30, 2024 regarding the refusal to recognize N.A. as needing housing and the appointment of housing payments was declared illegal and canceled.
The Police Department is charged with the obligation, within one month from the date of entry into force of the court decision, to adopt a favorable administrative act recognizing N.A. as in need of housing and to assign housing payments to him from the date of filing the report.
The issue of court costs has been resolved.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case were canceled, a new decision was made to dismiss the claim.
Conclusions: according to 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 habitable housing in the locality in which they serve over the past five years, except for the case when their spouses had a home 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 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 employees of the internal affairs bodies 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 February 8, 2022, the plaintiff alienated a habitable dwelling under a purchase and sale agreement, respectively, a five-year period has not passed since the alienation to recognize the plaintiff as in need of housing.
The board considers 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 new housing with a mortgage in order to meet the need for more space to be 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 area per person is not applicable, since the plaintiff did not receive an apartment from the state According to the 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 assigning housing payments, 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 did 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.
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