On forcing to make a positive decision on the gratuitous privatization of housing from the state housing stock
No. 6001-24-00-6ap/2826 dated April 03, 2025
Plaintiff: K.A.
The defendants: KSU "Housing Fund" of the Akimat (hereinafter referred to as the Housing Fund) and the State Institution "Housing and Housing Inspection Department" (hereinafter referred to as the Housing Department)
The subject of the dispute: the coercion to make a positive decision on the gratuitous privatization of housing from the state housing stock
Review of the defendant's cassation complaint PLOT:
On June 23, 2016, under the housing privatization agreement, the plaintiff and his family members: his spouse, as well as two children, acquired a one-room apartment for 5,804,346 tenge.
According to the purchase and sale agreement dated November 11, 2016, the apartment was alienated.
On January 11, 2024, according to the lease agreement for office housing, the plaintiff, as part of a family of 4 people, was provided with a two-bedroom apartment with a total area of 90.9 sq.m.
On February 3, 2024, the plaintiff applied to the housing commission of the Akimat of the city with an application for the privatization of the specified dwelling, however, by the defendant's decision of February 9, 2024, the privatization of the dwelling was refused, indicating that the plaintiff had previously used the right to privatize housing from the state housing stock.
The plaintiff appealed to the court with the above-mentioned claim against the Housing Fund and Housing Management, arguing that the defendant unlawfully refused to privatize housing, since the previously privatized housing was jointly owned and did not comply with the norms provided for by law.
Judicial acts:
1st instance: the claim is partially satisfied.
The Housing Fund is obligated to adopt a favorable administrative act on the plaintiff's request for the privatization of housing from the state housing stock, taking into account the legal position of the court.
In satisfying a claim for coercion to accept a positive
the decision on the gratuitous privatization of housing from the state housing fund was refused.
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: the plaintiff had previously used his right to privatize, since on June 23, 2016, he privatized the apartment.
It can be seen from the privatization agreement dated June 23, 2016 that he privatized the above apartment at an estimated cost of 5,804,346 tenge.
It is also established that the total area of the previously privatized apartment is 36.0 sq.m. of these, the living room is 17.5 sq.m.
In accordance with paragraph 9 of Article 13 of the Law of the Republic of Kazakhstan
"On Housing Relations" (hereinafter referred to as the Law) citizens of the Republic of Kazakhstan have the right to privatize only one dwelling from the state housing stock in the territory of the Republic of Kazakhstan, with the exception of the privatization of housing through a coupon mechanism, which is not a reason for refusing to exercise the citizen's right to privatize housing.
According to article 75 of the Law, a dwelling from the state housing stock or a dwelling rented by a local executive body from a private housing stock is provided in the amount of not less than fifteen square meters and not more than eighteen square meters of usable space per person, but not less than a one-room apartment or a dormitory room.
Consequently, based on the interpretation and content of the above-mentioned provisions of the Law, a person has the right to claim only one dwelling from the state housing stock, while the area of the provided dwelling must be at least 15 square meters and not more than 18 square meters of usable area per person.
However, it can be seen from the case file that the plaintiff had previously exercised his right to privatize housing from the state housing stock without using a coupon mechanism, at the expense of his own funds, the amount of which was determined by the evaluation commission, as indicated in the contract.
It should be noted that the total area of the previously privatized housing was 36.0 sq.m., that is, it complies with the norms of Article 75 of the Law.
In this regard, the board concluded that the defendant lawfully refused to privatize the disputed apartment to the plaintiff, since in 2016 he used the right to privatize at the expense of funds. Accordingly, the decision of the administrative body does not violate the rights and legitimate interests of the plaintiff as an employer who had previously exercised his right to housing.
Considering that the local courts made a mistake in applying the norms of substantive law and the case does not require the collection and additional verification of evidence, the judicial board considered it necessary to cancel the contested judicial acts with a new decision to dismiss the claim.
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