On disputes over the ownership of housing
The laws used by the courts when considering cases.
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 10 dated July 09, 1999 "On certain issues of the application of legislation on the right of ownership of housing";
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 3 dated April 20, 2006 "On the practice of judicial review of disputes on the right to housing abandoned by the owner";
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 5 dated July 16, 2007 "On certain issues of dispute Resolution related to the protection of Home Ownership";
Articles 259-267 of the Civil Code of the Republic of Kazakhstan;
The Law of the Republic of Kazakhstan No. 94 dated April 16, 1997 "On Housing Relations";
The Law of the Republic of Kazakhstan "On Privatization" No. 2721 dated December 23, 1995;
Article 25 of the Constitution of the Republic of Kazakhstan.
According to the requirements of these laws, any legally acquired dwelling may be the property of citizens and legal entities. The recipient's ownership right to the dwelling arises from the moment of its state registration. The owner has the right to demand recognition of ownership rights and to claim his illegally appropriated property. The rights of the owner to own, use, and dispose of are protected in court by the methods prescribed by law.
A statement of claim for the ownership of a dwelling is filed with the court at its location. The statement of claim in which the court rules are violated is returned back, and those accepted for production are sent according to jurisdiction.
The claims on the property rights of the dwelling include: the claim of illegal possession of the dwelling by others; the destruction of violations of rights not related to the separation of appropriation; recognition of the right of home ownership; recognition of the "invalidity" of the auction and the transaction on the alienation of the dwelling.
By the decision of the Aksu District Court of the Almaty region dated 24.02.2015, the claim in a civil case was satisfied on the basis of O.E.'s statement of claim to the defendants of the State Institution "Akim of Aksu district" for recognition of ownership rights under the statute of limitations of a residential building.
According to the evidence in the case, the representative of the State Institution "office of the Akimat of the Askussky district", lawyer D. K., indicates that he agrees with the claim, he has been living in the village of B. S. (formerly Kyzyltu) house No. 8 on Satpeav Street since 1965, and asks for ownership rights according to the statute of limitations.
Having studied the case materials, having heard the statements of the plaintiff, the defendant, witnesses and the conclusion of the prosecutor, the court ruled to satisfy O.E.'s claim for property rights under the statute of limitations. That is, during the court session, E.O. proved that he had been living in the house No. 8 on Tatpeav Street, the village of B. Syrttanov (formerly Kyzyltu), (formerly Kyzyltuiskaya, 28), Aksus district, Almaty region for over 50 years, conscientiously, openly and continuously, timely paid utilities and taxes.
Therefore, according to the requirements of art.240 Part 1 of the Civil Code of the Republic of Kazakhstan, "a citizen or a legal entity that is not the owner of property, but in good faith, openly and continuously owning their own real estate for seven years, or other property for at least five years, acquires ownership of this property (statute of limitations)" satisfied the claim
And also, it would be correct for a judge of the first instance to take into account the requirements when making a decision in this category: 12-paragraph of the Normative Resolution of the Supreme Court of the Republic of Kazakhstan No. 3 dated 04/20/2006 "On the practice of court consideration of disputes on the right to housing abandoned by the owner" 2-paragraph 3 of paragraph of the normative resolution No. 5 dated 07/16/2007 of the Supreme Court Of the Republic of Kazakhstan "On certain issues in resolving disputes related to the protection of property rights to residential buildings" Because, in paragraph 12 of the Regulatory Resolution, it says: on the basis of the expiration of the terms of ownership, a person, anyone who considers himself the owner has the right to apply to the court with a statement of claim for recognition of ownership rights.
This case is subject to consideration at the request of the court, and if there are no disputes about the law and according to 5) paragraph 2-part 291 of the Civil Code, when submitting an application, the case will be considered in a special proceeding, also in paragraph 2, paragraph 3 of the regulatory resolution shows that, subject to non-compliance with the forms of the transaction, the transaction made in practice, confirming witness responses and other evidence (for example: a receipt for receiving money after the sale of an apartment building or a power of attorney for the withdrawal of the rights of the owners), if the seller's location is uncertain, the interested party has the right to identify the seller as the defendant and apply to the court for recognition of the transaction as valid.
By the decision of the Merkinsky District Court of the Zhambyl region dated 06/23/2015, T.A.K.'s claim to the defendant "Akaralsky rural district office" for obtaining ownership rights (expiration of tenure) for real estate was satisfied. In the middle of December 1996, she bought an apartment in house No. 4, block No. 4 on Baibikova T. Street, Akaral village, Merkinsky district of Zhambyl region from A.G. for 30,000 tenge. After receiving the money, the seller handed over the apartment documents to the plaintiff and moved to the city of Taraz.
Due to the lack of money, it was not notarized. She lost her apartment purchase receipt and has been carrying out annual repairs and paying for utilities on time since that time. According to the certificate of the Merkinsky District Department of Justice, the property rights of A.K., her son A.N. and daughter A.N. to house No. 4, block No. 4 on Baibikova T. Street, Akaral village, Merkinsky district of Zhambyl region were issued on 12/14/1992 on the basis of an apartment privatization agreement dated 09/21/1992.
When making the decision, the court of first instance was guided by the requirements of Part 1 of Article 240 of the Civil Code, which established and proved that, in the period from 1998 to the present, she lives in this house, the arguments indicated in the claim are true and all payments were paid on time. However, the court did not establish the sellers' place of residence, how much the apartment was sold for, or how the purchase and sale agreement was concluded.
The requirement to recognize the ownership of self-built residential buildings on land plots not intended for such purposes may be satisfied if these plots are given to the plaintiff in accordance with the procedure established by law.
Therefore, when preparing a case for consideration, the judge must ask the plaintiff to provide evidence that the land was given to him, the construction complies with the norms and rules of architecture and construction. The documents provided on the agreement between the akim and the authorized body on the issue of a land plot to the plaintiff and on compliance with the norms and rules of architecture and construction may be such evidence.
Residential buildings located on illegal land plots that do not have the necessary permits or independently built houses in violation of the norms and rules of architecture and construction that have passed the terms of ownership established by Article 240 of the Civil Code do not apply.
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