On some issues of dispute resolution related to the protection of home ownership

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 5.

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      In order to ensure the correct and uniform application of legislation on the right of ownership of housing, the plenary session of the Supreme Court of the Republic of Kazakhstan

      p o s t a n o v l I e t:

In accordance with paragraph 1 of Article 26 of the Constitution of the Republic of Kazakhstan, Article 191 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code) and Article 11 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), any legally acquired dwelling may be privately owned by citizens and legal entities. The rights of owners to own, use and dispose of housing are protected in court by the means provided for by legislative acts.

      Due to the fact that the norms of the Constitution of the Republic of Kazakhstan allow the restriction of civil human rights only by laws, other subordinate regulatory legal acts restricting the rights of the owner are not subject to application.

A claim for ownership of a dwelling is filed in court at its location. A claim filed in violation of the rules of jurisdiction is returned, and one accepted for production is sent according to the jurisdiction.

      Claims for the right of ownership of housing include: claims for the recovery of housing from someone else's illegal possession; for the elimination of violations of rights not related to the deprivation of possession; for the recognition of the right to housing; for the recognition of auctions for the alienation of housing invalid; for the recognition of transactions for the alienation of housing invalid and others.

According to paragraph 2 of Article 118 of the Civil Code and Article 17 of the Law, the buyer's ownership of a dwelling arises from the moment of its state registration by an authorized body, however, its absence is not an independent basis for invalidating the transaction.

      In case of non-compliance with the form of the transaction, when the actual transaction is confirmed by evidence other than testimony (for example, a receipt for the sale of a home and receipt of money, or the issuance of a power of attorney for the right of alienation), if the seller's location is unknown, the interested party has the right to file a lawsuit to recognize the transaction as valid, indicating as a defendant the seller, notified by the court at his last known place of residence. If the court refuses to recognize the transaction as valid, if the owner has alienated the housing in the prescribed form to a third party, the plaintiff has the right to reimburse the costs incurred.

The right to dispose of the buyer's home arises from the moment of state registration of ownership rights.

      The owner who has made a transaction for the alienation of a dwelling in the prescribed form is not entitled to dispose of it later, since the specified dwelling is the subject of a fulfilled obligation, and the buyer who has not completed state registration is recognized as its rightful owner.

If a dispute arises on the grounds of improper fulfillment by the buyer of the obligation to pay for the purchased dwelling, after its state registration, the seller, on the basis of paragraph 3 of Article 439 of the Civil Code, has the right to demand payment of the cost of the sold dwelling and a penalty in accordance with Article 353 of the Civil Code.

      If the law or agreement provides for the termination of the contract with the return of what the parties have received, registration of ownership rights is not an obstacle to termination of the contract on the grounds provided for in Article 401 of the Civil Code. In this case, the parties have the right to demand, in addition to the return of the dwelling, compensation for the losses caused.

The courts need to clarify the specific grounds for the invalidity of transactions specified in Articles 158 - 160 of the Civil Code. It should be borne in mind that Articles 157, 157-1 of the Civil Code contain a general rule on the invalidity of a transaction and the consequences of its invalidity and are not independent grounds for declaring a transaction invalid.

     The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).      7. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).

If a transaction is declared invalid on the grounds of its commission by a person subsequently declared incompetent, or on the grounds specified in paragraphs 6-11 of Article 159 of the Civil Code, the court applies the consequences provided for in paragraphs 3, 4, 5 and 6 of Article 157-1 of the Civil Code, only at the request of the persons specified in the Civil Code.

     The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/20/2018 No. 7 (effective from the date of the first official publication).

When resolving a claim for the recovery of a home from someone else's illegal possession by the plaintiff, whose right of claim stems from the invalidity of the transaction as committed by an incapacitated person, as well as the existence of the grounds specified in Article 158 of the Civil Code, paragraphs 1-3 of Article 159 of the Civil Code, Article 160 of the Civil Code, or the illegality of an act of a state body, the court, when requesting recognition of the transaction or if the act is invalid, it has the right to evaluate such a transaction or an act of a state body. At the same time, the court must take into account that if a person has acquired ownership of a dwelling on the basis of a transaction that was declared invalid or an act of a state body that did not comply with the requirements of the law, then he has no legal grounds for claiming the dwelling.

If, when considering a claim for reclaiming a home from someone else's illegal possession, it turns out that it is based on the invalidity of a transaction made by a person subsequently declared incompetent or in the cases specified in paragraphs 6-11 of Article 159 of the Civil Code, the court may not, on its own initiative, invalidate it.

A claim for recognition of ownership of an unauthorized dwelling is submitted to the local executive body and is considered by the court in the order of claim proceedings. Satisfaction of such a claim is possible provided that the preservation of the building does not violate the legitimate interests of others or endanger the life and health of citizens. These conditions must be confirmed by the authorities authorized to carry out state acceptance of completed construction projects.

When considering a claim for recognition of ownership of a residential building arbitrarily erected on a plot of land not allocated for these purposes, it can be satisfied only on condition that this plot is provided to the plaintiff in accordance with the procedure established by law.

      In this regard, the judge, at the stage of preparing the case for trial, should invite the plaintiff to provide evidence that the land plot will be provided to him and that the building complies with urban planning and building regulations. Such evidence may include documents issued by the akim and authorized bodies confirming the consent of the provision of the land plot to the plaintiff and the compliance of the building with the norms and rules.

      The statute of limitations established by Article 240 of the Civil Code does not apply to an unauthorized residential building located on an illegally occupied land plot and built without obtaining the necessary permits or in violation of urban planning and building regulations.

When recognizing the ownership of a residential building for a person in whose lawful use the land plot where the unauthorized building is located is located, the court, if there is a corresponding requirement, reimburses the person who carried out the construction for the construction costs incurred by him.

     The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).

If the dwelling is in illegal actual possession of another person, the owner has the right to file a claim for reclaiming the dwelling from someone else's illegal possession. If during the consideration of such a claim it is established that the dwelling is in the possession of a third person, the court has the right, with the consent of the plaintiff, to involve him as a co-defendant and satisfy the claim in the presence of the circumstances specified in Article 261 of the Civil Code.

When considering a claim for the reclamation of a home from a bona fide buyer, in order to ensure the stability of civil turnover, the courts must take into account that the interests of the buyer who has shown reasonable care, integrity and prudence are subject to protection. Irrefutable facts of bona fide ownership and use of housing, along with other evidence, are the basis for recognizing a person as a bona fide buyer.

     The defendant's counterclaims for recognition as a bona fide acquirer are not required, since the resolution of this issue is the responsibility of the court when considering vindication claims (for the recovery of property from someone else's illegal possession).

     In other cases of protection of property rights and other property rights, the identification of a person by a bona fide acquirer has no legal significance.

     The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).

If the court finds that the acquirer knew or should have known about the alienation of the dwelling by a person who does not have the right to do so, or if at the time of the transaction there were claims by third parties in respect of the dwelling being sold, which the buyer was or could have been aware of, and these claims were subsequently recognized as legitimate, then he cannot be recognized a bona fide buyer.

The owner has the right to claim a dwelling from a bona fide acquirer only if the dwelling has left his possession or the possession of the person to whom it was transferred by the owner, against their will.

Such cases include, in particular, the commission of a transaction under the influence of delusion, deception, violence, threats, malicious agreement between the owner's representative and another person, etc. In this case, the owner must prove the fact of the disposal of the dwelling against his will.

      The owner's claim for reclaiming a dwelling from someone else's illegal possession is subject to satisfaction in all cases when the dwelling has passed to a bona fide buyer free of charge.

If the dwelling is alienated under a compensation agreement by a person who did not have the right to do so, the owner has the right to apply to the court with a claim to reclaim the dwelling from a bona fide buyer, declaring the transaction invalid. This right of ownership applies not only to the first transaction made in violation of the law, but also to all subsequent transactions.

      If, during the consideration of the case, the court finds that the subsequent buyer meets the requirements imposed on a bona fide buyer, and the dwelling was disposed of by the owner at his will, then the claims may be refused.

     The footnote. Paragraph 18 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of its official publication).

The owner of the dwelling has the right, on the basis of Article 264 of the Civil Code, to file a claim for the elimination of any violations of his rights to housing, although these violations were not connected with the deprivation of possession. The limitation period does not apply to such a claim.

      In accordance with Article 265 of the Civil Code, a person who is not the owner of a dwelling, but legally owns it, has the right to protection of home ownership on an equal basis with protection of property rights, including from illegal actions of the owner.

According to  According to Article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, and is also generally binding and effective from the date of its official publication.

Chairman of the Supreme Court

Republic of Kazakhstan

Judge of the Supreme Court

Republic of Kazakhstan,

Secretary of the plenary session

 

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