On recognition of the decision on refusal of gratuitous privatization as illegal and its cancellation, forcing to make a favorable act
No.6001-23-00-6ap/97 dated 08/17/2023
Plaintiff: N.E.
The defendant: The State Enterprise for the Municipal Real Estate Complex "Urban Real estate" of the Akimat.
The subject of the dispute: the recognition of the decision to refuse gratuitous privatization as illegal and its cancellation, forcing to make a favorable act.
Review of the plaintiff's cassation appeal.
PLOT: On October 26, 2018, the plaintiff was provided with a dwelling equivalent to a service one in the form of a three-room apartment at the address: city of N., Dukenuly Street, house No. 37/2, apartment No. 81. On October 1, 2021, the lease agreement for the specified apartment was renegotiated.
According to the disability certificate dated July 21, 2022 No. 3010540 n.E. is a disabled person of the second group until July 21, 2023. On June 6, 2022, the plaintiff filed an application for gratuitous privatization of housing in the category of a person entitled to gratuitous privatization of occupied housing (group 2 disabled person). On June 16, 2022, the plaintiff was denied gratuitous privatization of the occupied housing due to the lack of required length of service in government organizations.
Judicial acts:
1st instance: the claim was denied.
Appeal: the court's decision is upheld. Cassation: judicial acts are annulled, the USC is satisfied.
Conclusions: Based on subparagraph 21 of Article 2, paragraph 2 of Article 67 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), dwellings from the housing stock of state–owned enterprises are provided for use by employees of this enterprise in need of housing and the dwellings provided to them are equated to official ones.
Similar provisions are set out in sub–paragraphs 8 of paragraph 2 of the Rules for the Privatization of Housing from the State Housing Stock, approved by Resolution No. 673 of the Government of the Republic of Kazakhstan dated July 2, 2013 (hereinafter referred to as the Rules).
The fact that the apartment provided to the plaintiff belongs to the state housing stock and has the status of an office dwelling is not disputed by the parties. In accordance with paragraph 5 of Article 13 of the Law, dwellings equated to official ones from the state housing stock may be privatized on the grounds provided for in subitems 3, 4 of Article 101 of the Law.
In particular, according to paragraph 3 of Article 101 of the Law, civil servants and employees of budgetary organizations, state-owned enterprises, candidates for cosmonauts, cosmonauts, and persons holding public elected positions may privatize their homes, equated to official ones, at residual value if they have worked in the civil service, a state-owned enterprise, or in budgetary organizations (including the term of office in public office) for at least ten years (in aggregate), as well as regardless of the length of service, if the employment relationship is terminated for the following reasons:
1) liquidation of the organization, reduction of the number or staff of employees;
2) due to an illness that prevents further work;
3) in connection with retirement.
The courts, resolving the dispute on the merits, based on the above-mentioned norms of the Law and the circumstances established in court, came to the conclusion that the claim was groundless, since the plaintiff's right to privatize requires ten years of work experience, however, the plaintiff's experience is 8 years.
Thus, the courts considered that, in view of the direct indication of the procedure for privatizing housing, which was equivalent to official housing, the defendant had made a reasoned decision to refuse to privatize housing free of charge and there were no grounds for issuing a favorable act.
The Judicial Board considers such conclusions of the court to be erroneous, based on the incorrect application of the law. In accordance with subparagraph 2) According to paragraph 8 of Article 13 of the Law, persons with disabilities of the first and second groups have the right to receive ownership of their occupied dwellings from the State housing stock free of charge.
The Rules define the procedure for the privatization of public housing stock. The list of persons who receive ownership of their occupied dwellings from the state housing fund free of charge is provided for in paragraph 7 of the Rules, including persons with disabilities of groups 1 and 2 (subparagraph 2).
In this regard, the plaintiff lawfully applied to the company for the gratuitous privatization of the housing he occupies from the state housing stock, as a person belonging to socially vulnerable segments of the population, and not as an employee of a state-owned enterprise, who requires ten years of work experience to consent to the privatization of the housing he occupies at residual value.
Since in this case we are talking about different categories of citizens who have the right to privatize on different grounds, the right of origin and the grounds for privatization are also different for them.
Based on the above, the judicial board concludes that the plaintiff, being a disabled person of the second group, has the right to privatize the dwelling he occupies free of charge without proof of work experience.
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
