On land disputes, demolition of self-built structures at the expense of the defendant and recovery of moral damage

The plaintiff A. appealed to the court with a claim against defendant K. for the demolition of self-built structures at the expense of the defendant and the recovery of moral damage, which was justified by the fact that defendant K., without obtaining the permission of the relevant authorities, erected a summer temporary residential building and a barn that does not meet the requirements of building codes and rules. By the decision of the zhualinsky District Court of September 4, 2017, the statement of claim was dismissed, and by the decision of the judicial board for civil cases of the Zhambyl Regional Court of November 15, 2017, the court decision was left unchanged. In accordance with Part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC), a significant violation of the norms of material and procedural law, which led to the issuance of an illegal judicial act, is the basis for the Cassation review of judicial acts that have entered into legal force. In this case, the listed violations were committed. In the process of considering a civil case in local courts and resolving a dispute, the following circumstances are established. The right of claimant A. to own a private house in Zhualinsky district, Bauyrzhan Momyshuly village, D. Kunaev Street, No. 88, and a land plot of 0.1106 hectares, where this house is located, is registered with the relevant authorities. The right of the defendant to own a private property and a land plot of 0.08 hectares on which this house is located is also legally registered in the Zhualinsky District, Bauyrzhan Momyshuly village, D. Kunaev Street, No. 90.

The plaintiff's ownership of Housing and subsidiary Farm facilities with a total area of 88.2 m2 and a residential area of 52.4 M2 is determined in accordance with the protocol of the meeting of the property legalization Commission No. 109 dated November 24, 2016. The right of ownership of the housing owned by the defendant is determined on the basis of the contract of Sale, Purchase and sale of housing with a total area of 63.3 m2 with a residential area of 45.3 m2 with subsidiary Farm facilities between D. and K. dated June 27, 1997.  In addition, according to the technical inventory of housing owned by K. himself, in 1955 and 1958 he demolished the barns liter 1 and Liter 2, built along the line of the border belts, in 2012 he built a new barn with a length of 20 meters for keeping livestock, and in 2016 he built a summer kitchen with a length of 14 meters from the border of the owner of the House No. 88 to the fence of the owner's Barn No. 90. These structures were built by the defendant independently, without obtaining the permission of neighbors, state bodies and without drawing up the relevant documents. In accordance with subparagraphs 1, 1 and 3), Paragraph 1 of Article 427 of the code of criminal procedure, incorrect determination and determination of the range of circumstances relevant to the case, as well as inconsistency of the nodes of the court of First Instance set out in the decision with the circumstances of the case, are grounds for canceling the court decision or changing it. Local courts concluded that the construction facilities built by the defendant K. on their own do not pose a threat to the life and health of the plaintiff and the environment, and therefore there are no grounds for satisfying the claim.

However, this conclusion does not correspond to the nature of the disputed relationship and the content of the circumstances established in the case. According to the act on determining the boundaries of land plots of residential buildings No. 88 and No. 90 located on D. Kunaev street, drawn up with the participation of specialists in architecture, urban planning and construction of the Zhualinsky district akimat with special knowledge (t.1, I/B 93), a new barn with a length of 20 meters is located from the border of the owner of the House No. 88 to the fence of the owner's Barn No. 90 with an indentation of 90 cm from the head side, 67 cm from the fence in the middle of the barn, 50 cm from the lower side to the fence. It is established that the height of the wall of the summer dining room, which is 14 meters long, is 3.55 meters, and the height of the roof is 2.3 meters. The form of the summer kitchen is located from the border of the owner of the House No. 88 in the direction of the border of the owner of the house No. 90 with an indentation of 1.5 meters with a low side of 85 cm. The span between the shed of house A. and the summer kitchen of the defendant is 2.30 meters.  According to experts, during the construction of the above-mentioned construction facilities, the defendant did not receive the consent of neighbors and local authorized bodies, and the defendant "on the planning and construction of individual housing construction areas" 3.01-02-201 construction was carried out independently, without complying with the requirements of part 4.4 of the sanitary building codes and regulations.   Also, documents of non-residential economic objects are not legalized. The defendant does not exclude in K. that during the construction of these construction facilities, the plaintiff did not receive his consent and did not draw up the relevant documents. At the same time, the plaintiff's arguments about the fact that the roof of these structures is closed with a slope towards his yard, water and snow from the roof accumulate in the yard, that the structures are located on the sunny surface of the land plot, and he is deprived of the opportunity to plant gardens and run a business were not checked by the courts at all. During the consideration of the case, the boundaries of land plots privately owned by the parties, at the time of their initial right and in the course of their current actual possession were not determined. The defendant indicated that the plaintiff, after receiving the Protocol No. 109 of November 24, 2016 of the property legalization commission, did not observe the initial boundaries of the land plot, but enlarged it and did not receive a new act for this modified land plot. In the act of determining the boundaries of the above ‑ mentioned specialists, it is indicated that in fact the amount of land used by the plaintiff under the Land Act is 0.1106 hectares, and the actual amount of land used is 0.1177 hectares.

And it is established to the defendant that if the corresponding land area is under the act ‑ 0.0800 hectares, he actually uses the land area of 0.0846 hectares. In accordance with these stated circumstances, the determination of the legal boundaries of the land plot used by the parties belongs to the category of circumstances relevant to the case. During the court session, the plaintiff clarified his statement of claim, giving answers that the defendant illegally built the construction facilities of K., entering 1 meter of his land plot. However, in the process of making a decision, the courts did not study this opinion. In accordance with the requirements of Article 4 of the APC, the tasks of civil proceedings are to protect and restore violated or disputed rights, freedoms and legitimate interests of citizens, the state and legal entities, observe the rule of law in civil circulation and public legal relations, promote peaceful settlement of disputes, prevent offenses and form a respectful attitude to the law and the court in society. However, local courts did not comply with the listed requirements of procedural legislation and did not pay attention to the legality of the decisions taken. Taking into account the above-mentioned circumstances, the judicial board concluded that the contested judicial acts were not adopted in accordance with the requirements of the current material and procedural legislation, therefore, their powers are subject to cancellation, and the civil case is subject to admission to the judicial board for civil cases of the regional court for new consideration as part of other judges. The Judicial Board of Cassation for civil cases of the Supreme Court of the Republic of Kazakhstan canceled the local judicial acts and sent the case to the court of Appeal for a new consideration. The petition of the plaintiff A. was satisfied. 

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