On some issues of the application by the courts of legislation on the compulsory alienation of land for state needs
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated December 25, 2006 No. 8.
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The footnote. The title is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2).
The footnote. Throughout the text, the words "needs" and "necessities" were replaced by the words "needs" and "needs" by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2).
In connection with the need for uniform application of legislation by courts when considering civil cases of forced alienation from a non-governmental land user or owner of land plots for state needs, the plenary session of the Supreme Court of the Republic of Kazakhstan
DECIDES
The footnote. The preamble as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); as amended by the normative resolution of the Supreme Court of the Republic of Kazakhstan dated 12/24/2014 No. 3 (effective from the date of official publication).
When resolving cases of forced alienation of land plots for state needs, courts should keep in mind that the legislation on these legal relations is based on the Constitution of the Republic of Kazakhstan and consists of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code), the Law of the Republic of Kazakhstan "On State Property" (hereinafter referred to as the Law on State Property), the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as - The Law on Housing Relations), as well as the Laws of the Republic of Kazakhstan "On Local Government and Self-government in the Republic of Kazakhstan", "On Individual Housing Construction", "On Architectural, Urban planning and construction activities in the Republic of Kazakhstan", "On Valuation activities in the Republic of Kazakhstan" and other regulatory legal acts.
The footnote. Paragraph 1 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication).
Claims on disputes are brought by the executive body to the district (city) court at the location of the land plot subject to compulsory alienation for state needs. At the same time, the courts should keep in mind that the local executive body, in accordance with Article 88 of the Land Code, paragraph 7 of Article 65 and paragraph 4 of Article 69 of the Law on State Property, has the right to file a corresponding claim with the court if:
the owner or non-governmental land user does not agree with the decision on the commencement of compulsory alienation of a land plot for state needs or other immovable property in connection with the seizure of a land plot for state needs;
no agreement has been reached with him on the cost of the seized land plot or other conditions for the compulsory alienation of the land plot;
No agreement has been reached on the transfer of property, including with persons whose rights in relation to the seized property will be terminated or restricted during forced alienation.
In cases where the defendants in the lawsuits indicate owners, land users who are non-governmental legal entities, citizens engaged in business activities without forming a legal entity, using housing construction or land for entrepreneurial activities, such lawsuits are filed with specialized interdistrict economic courts.
The footnote. Paragraph 2 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication).
When deciding whether to accept an application, the judge should check the plaintiff's compliance with the requirements of Articles 150 and 151 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter - CPC). If a claim is filed without specifying information about the delivery of a notification and an offer to the owner of another equivalent land plot, comfortable housing, or monetary compensation, the statement of claim should be left without motion in accordance with the first part of Article 155 of the CPC, with a deadline for stating the circumstances in the claim on which the plaintiff bases his claims, and evidence confirming these circumstances..
When preparing a case for trial, the judge checks the availability and, if necessary, invites the parties to submit the following written evidence:
1) a resolution of the Government or a local executive body on the compulsory alienation of a land plot for state needs, accompanied by an extract from the general plan of the city (locality) regarding the construction of facilities falling under the list of exceptional cases established by paragraph 2 of Article 84 of the Land Code;
2) a written notification of the authority on the decision, indicating the date of its transmission to the owner, non-governmental land user and a note on receipt;
3) a contract of privatization, purchase and sale, donation and (or) other identification, title documents for ownership or land use of a land plot, housing construction, as well as an act of acceptance of housing construction into operation, a technical passport, plans for housing and land, information from the legal cadastre on the state registration of rights to real estate and transactions With him;
4) an assessment report, a title document (a contract of sale, donation, etc.) or other document confirming the market value of the land plot and the immovable property located on it, or the cadastral (estimated) value if there is no price for the land plot in the civil law contract.;
5) a document confirming the proposals of the local executive body on the provision of another equivalent land plot, comfortable housing.
The footnote. Paragraph 4 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication).
The defendant's claims to the plaintiff for the provision of another equivalent land plot or comfortable housing in return for the monetary compensation offered by the plaintiff are not counterclaims. Therefore, all issues related to the owner's choice of the form of compensation should be considered by the court within the framework of the claim filed by the local executive body and in compliance with the requirements of paragraph 6 of Article 67 of the Law on State Property, Article 88 of the Land Code, Article 15, paragraph 2 of Article 29 and Article 119-1 of the Law on Housing Relations, as well as other norms protecting the rights of the owner.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 3 (effective from the date of its official publication).
When resolving a dispute, courts should be guided by paragraph 3 of Article 26 of the Constitution of the Republic of Kazakhstan, according to which compulsory alienation of property for state needs in exceptional cases provided for by law may be carried out subject to equivalent compensation. It is also necessary to take into account that if, after the forced alienation of a part of the land plot for state needs, the owner or a non-governmental land user cannot use the remaining part for its intended purpose, then the entire land plot is alienated. The conclusion (information) on the impossibility of using the land plot for its previous intended purpose is provided by the authorized body in the field of land relations.
It should be borne in mind that by virtue of paragraph 5 of Article 188 of the Civil Code, ownership of property can be forcibly terminated only on the grounds provided for by the Civil Code.
Termination of ownership of real estate in connection with a decree of the Government or a local executive body on the compulsory alienation of a land plot for state needs on which a house, other buildings, structures or plantings belonging to the owner are located, according to paragraph 1 of Article 255 of the Civil Code, is allowed only in cases and in accordance with the procedure established by legislative acts, with the presentation of equivalent property to the owner and compensation for other losses incurred or compensation to him in full for losses caused by the termination of ownership rights.
The ground for termination of the right of private ownership of a land plot or the right of land use by virtue of subparagraph 2) of paragraph 2 of Article 81 of the Land Code is the compulsory alienation of a land plot for state needs.
If, during the hearing of the case, it is established that the resolution of the Government or local executive body on the compulsory alienation of land plots is not conditioned by state needs, or such a resolution was adopted by an unauthorized body (organization, person), and also if it does not comply with the requirements of Article 84 of the Land Code, the court refuses to satisfy the claim. If the owner of the land plot or a non-governmental land user does not agree with a decree of the Government or a local executive body on the compulsory alienation of the land plot for state needs, entailing the termination of ownership or land use rights, it cannot be carried out until the dispute is resolved in court.
The footnote. Paragraph 6, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication). 7. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated December 24, 2014 No. 3 (effective from the date of its official publication).
When resolving a dispute, courts should take into account that, at the request of the Government or a local executive body, a land plot may, in exceptional cases, be forcibly alienated for state needs if there is no other way to meet these needs and subject to equivalent compensation for the alienated property.
Courts should check what measures have been taken by the local executive body before applying to the court to resolve issues related to the draft agreement on the purchase of land or other immovable property on the composition of the seized property, to persons whose rights in relation to this property will be terminated or limited, and the amount of damages to be reimbursed. The resolution of these issues is the responsibility of the local executive body that made the decision on the compulsory alienation of the land plot. Thus, in accordance with articles 15 and 119-1 of the Law on Housing Relations, the owner is provided with a comfortable dwelling or compensation in the amount of the market value of the dwelling before the demolition of his dwelling at his choice.
Having established at a court hearing that a claim for compulsory alienation of a land plot was filed by a local executive body without offering the owner another equivalent land plot or a comfortable dwelling, the courts should postpone the trial in accordance with Article 189 of the CPC to resolve this issue.
The footnote. Paragraph 8, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication).
Courts should keep in mind that a well-maintained dwelling is transferred to the ownership of a local executive body free of charge instead of a forcibly alienated land plot with housing construction located on it. The discrepancy between the cost of the provided housing and the cost of the demolished one is not a reason to dismiss the claim.
By virtue of paragraphs 2 and 3 of Article 15 of the Law on Housing Relations, if the value of the provided housing exceeds the value of the demolished one, then the difference in their value is not charged to the owner, but if the value of the demolished housing exceeds the value of the provided one, then the difference in their value is reimbursed to the owner.
The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2).
When resolving disputes about the eviction of citizens with the provision of other comfortable housing in connection with the forced alienation of land for state needs, the courts should not satisfy such claims if the executive body provides the owner with a dwelling for temporary residence (temporary housing) or an unsettled dwelling.
The footnote. Paragraph 10, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication).
A well-maintained dwelling and a land plot are transferred, and monetary compensation is paid until the termination of ownership rights and only to those persons who are the owners of the forcibly alienated objects.
If a land plot belongs to several owners on the right of common shared ownership, then each of them has the right to receive ownership of a separate land plot and (or) to receive other compensation provided for by law.
The footnote. Paragraph 11, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication).
When examining reports, written consultations of specialists and other documents related to valuation activities, courts should check them for compliance with the provisions of regulatory legal acts providing for the procedure, standard and methodology for assessing the market value of land (land use rights), housing construction, other real estate, as well as other property subject to valuation. At the same time, it should be borne in mind that the amount of monetary compensation for a forcibly alienated land plot cannot be determined based on its regulatory or cadastral price, since they do not reflect the market value of the land plot, except in cases provided for in paragraph 2 of Article 67 of the Law on State Property.
Documents related to evaluation activities do not have a pre-determined force, and are subject to evaluation by the court along with other evidence in the case.
If there are disagreements in the valuation documents provided by the parties, as a result of which it is not possible to determine the amount of compensation for the property being forcibly disposed of, the court may involve a specialist in the field of valuation activities to provide written advice or to produce a written assessment report. If there is disagreement about the size of the market value of the property being evaluated due to the ambiguity of the building material used for the object under study, then the court should appoint a forensic examination.
The courts also need to take into account that the appraiser must have a license to carry out valuation activities and has the right to independently apply valuation methods in accordance with the requirements of the legislation.
An assessment cannot be carried out by an appraiser if:
- in relation to the object of assessment, the appraiser has or acquires property or binding rights outside the contract;
- the appraiser is a shareholder, founder, employee, owner, participant, creditor, debtor, sponsor of the customer's legal entity;
- the appraiser is an individual who is a close relative or relative of the individual customer;
- appraiser - a legal entity in which the head or a person authorized by him is in close kinship or related relations with the customer - an individual and (or) the head or a person authorized by him of the legal entity.
Judicial acts should indicate the reasons why the courts accept the evaluation document as evidence or reject it.
The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication).
When resolving disputes on determining the amount of monetary compensation, the courts resolve all issues of compensation to the owner for losses caused by the termination of ownership rights in connection with the forced alienation of land for state needs, while the property is assessed based on its market price, except for the cases provided for in paragraph 2 of Article 67 of the Law on State Property.
When investigating the issue of the price for the alienated land plot, the courts must take into account the provisions of article 67 of the Law on State Property. When determining the market value of objects, one should be guided by paragraph 3 of Article 67, article 208 of the Law on State Property, the Law "On Valuation Activities in the Republic of Kazakhstan" and other regulatory legal acts in the field of valuation activities that establish requirements for evaluation, approaches and methods used, the content and form of evaluation reports.
Courts should keep in mind that along with the land plot, planned buildings, perennial green spaces and other real estate objects, the market value of household buildings and landscaping elements is also taken into account, the construction of which, according to paragraph 2 of Article 68 of the Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" does not require obtaining permits from local executive authorities.
At the same time, in accordance with article 86 of the Land Code, the courts should investigate whether the owner (land user) bears the risk of attributing to him the costs and losses associated with new construction, expansion or reconstruction of buildings (structures, structures) on the land from the moment the local executive body adopted a resolution on the compulsory alienation of the land for government needs.
Compensation for a forcibly alienated land plot to be paid to a participant in a housing condominium is calculated taking into account the size of its share, determined by the ratio of the useful areas of residential and (or) non-residential premises in individual (separate) ownership (other proprietary rights) to the sum of the useful areas of all residential and non-residential premises located in this the condominium facility, since, by virtue of paragraph 3 of Article 31 of the Law on Housing Relations, the share of each owner of premises (other rightholder) in the common property is inseparable from individual (separate) ownership (other proprietary right) of the premises belonging to him.
The footnote. Paragraph 13, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication).
In case of satisfaction of a claim for compulsory alienation of a land plot for state needs, the courts, by virtue of paragraph 1 of Article 15 of the Law on Housing Relations, should indicate in the operative part of the decision that the issue of enforcement of the decision regarding the eviction of the owner and the demolition of an apartment building should be resolved only after providing him with a comfortable home or payment of monetary compensation. If the owner refuses to receive monetary compensation, the issue of executing a court decision regarding the eviction and demolition of an apartment building must be resolved after proper notification to the owner of the receipt of funds to the cash control account of the enforcement authorities or the current account of a private bailiff.
Issues of compulsory execution, postponement and installment of execution of a court decision that has entered into legal force, and changes in the method and procedure for its execution may be initiated in accordance with the procedure established by law by both the state body whose claims have been satisfied, the owner of real estate, a non-governmental land user to whom the court has determined appropriate compensation for the alienated property, and the bailiff in whose proceedings enforcement proceedings are underway.
The footnote. Paragraph 14, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 2 (for the procedure of entry into force, see paragraph 2); dated 12/24/2014 No. 3 (effective from the date of official publication).
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,
Acting Director
Secretary of the plenary session
© 2012. RSE na PHB "Institute of Legislation and Legal Information of the Republic of Kazakhstan" of the Ministry of Justice of the Republic of Kazakhstan
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