On recognizing as illegal the refusal to produce and issue a cadastral passport for a land plot and on compulsion to produce and issue a cadastral passport for a land plot
No. 6001-24-00-6ap/1391 dated January 28, 2025
Plaintiff: N.V.
Defendant: NAO "GC "Government for Citizens"
The subject of the dispute: on the recognition of the illegal refusal on September 22, 2023 to produce and issue a cadastral passport for a land plot, on the compulsion to produce and issue a cadastral passport for a land plot
Review of the plaintiff's cassation complaint PLOT:
Based on the privatization agreement dated August 08, 1995, certificate of inheritance dated June 02, 2007, donation agreement dated May 31, 2021, donation agreement dated August 24, 2021, donation agreement dated September 14, 2022, N.V. owns an apartment in a residential building, at the address: city of A., K. Street (hereinafter referred to as the apartment).
The house is located on a plot of land with an area of 0.1550 hectares, the ownership of the land is shared, the land is indivisible.
On May 23, 2000, M.T., the owner of apartment No. 1 located at the specified address, was issued an act of ownership of the land plot based on the decision of the akim of the district of the city of A. dated May 19, 2000. The share of the land plot is set at 0.0549 hectares.
By the decree of the Akimat of the city of A. dated May 04, 2006, the owners of apartment No. 2, located at the specified address, were granted ownership of a land plot for the operation of an apartment building.
On September 19, 2007, the owner of apartment No. 2, located at the specified address, M.B., received an act of ownership of the land plot, and a share of 0.0361 hectares was determined.
In the materials of the land registry case, there is an agreement dated March 21, 2006 on the use of a land plot, where the land share of V.S. (previously the owner of apartment No. 3) is set at 0.0640 hectares.
By the decree of the Akimat of the city of A. dated July 29, 2016, for the citizens of V.S., N.V., S.Yu., S.V. (owners of apartment No. 3), the provision of a land plot for the operation of an apartment building, a share of 0.0640 ha, (hereinafter referred to as the land plot), apartment No. 3 was refused, due to unauthorized construction.
On September 22, 2023, the NAO refused to produce and issue a cadastral passport for a land plot, due to non–compliance of the service recipient and (or) the submitted materials, data and information necessary for the provision of public services with the requirements established by paragraph 3 of part six of Article 43 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Code) (paragraph 17-2 Appendix 6 to by Order of the Minister of Agriculture of the Republic of Kazakhstan dated October 1, 2020 No. 301). The notification indicates the absence of a title document for the land plot, and the need to contact the local executive body.
Disagreeing with the NAO's refusal, the plaintiff filed a lawsuit with the court.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: in accordance with Article 43 of the Code, the right to a land plot from lands owned by the state, with the exception of the cases provided for in Articles 44-1 and 44-2 of this Code, as well as lands put up for auction (auctions) in accordance with Article 48 of this Code, is carried out in the following order:
acceptance for consideration of an application (application) for granting the relevant right to a land plot;
determination of the possibility of using the requested land plot for the declared intended purpose in accordance with the territorial zoning;
preliminary selection of a land plot when applying for a land plot for the construction of facilities, with the exception of the construction of facilities within the boundaries of a locality;
preparation of the conclusion by the land Commission;
development and approval of the land management project;
decision-making by the local executive body of the region, the city of regional significance (on the territory transferred to its administrative subordination), the district and the akim of the settlement, village, rural district on granting the right to a land plot;
conclusion of a purchase and sale agreement or temporary (short-term, long-term) paid (gratuitous) land use;
establishing the boundaries of a land plot on the ground;
production and issuance of an identification document for a land plot, with the exception of a land plot intended for the construction of facilities within a settlement or village.
According to subparagraph 24) of Article 12 of the Code, the title document for the land plot – a document confirming the occurrence of legal facts (legal structures) on the basis of which the rights to a land plot arise, change or terminate, including contracts, court decisions, legal acts of executive bodies, certificate of inheritance, transfer act or separation balance sheet during the reorganization of non-governmental legal entities owning a land plot by right of ownership or who have bought the right of temporary paid land use (lease), protocol on the results of auctions for the sale of a land plot or the right to lease a land plot.
According to the Rules for the provision of public services "Production and issuance of acts on land plots", approved by Order No. 301 of the Minister of Agriculture of the Republic of Kazakhstan dated October 1, 2020, individuals send to receive public services through the portal or by contacting the service provider at the location of the land plot: when the state grants the right to the land plot: a copy of the decision of the local executive the authority for granting the right to the land plot, an electronic copy – when contacting the portal (for verification with the original documents).
Guided by the above-mentioned norms, the local courts came to a reasonable conclusion about the legality of the NAO's refusal to provide public services in connection with the plaintiff's incomplete package of title documents, since in this case the title document for the plaintiff's apartment is an agreement on the privatization of the apartment (house) dated August 08, 1995, concluded between the Commission for the implementation of the coupon mechanism of the city administration and V.S., however, the specified agreement does not provide for the provision of a land plot for the operation of an apartment building.
The courts have reliably established that by the decree of the Akimat of the city of A. dated July 29, 2016, the plaintiff was refused to provide a land plot for the operation of a residential building with a share of 0.0640 ha, as she carried out unauthorized construction on the requested land plot without permits, and other co-owners of the land plot received acts on land plots based on a decision of the local executive body.
Thus, the board concluded that the refusal of the NAO to provide public services in connection with the submission by the plaintiff of an incomplete set of documents was justified.
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