On some issues of the application of legislation on the right of ownership of housing
Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 9, 1999 No. 10.
The footnote. The name, as amended, is the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 7.
advertisement
Having discussed the results of the generalization of judicial practice in cases on the application of legislation on disputes on recognition of ownership of housing, allocation of shares to the owner, determination of the order of use of housing, the plenary session of the Supreme Court of the Republic of Kazakhstan decides: <*>
The footnote. The preamble is amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 7 .
In order to ensure comprehensive and correct dispute resolution, during the preparation of the case for judicial review, the courts should request documents confirming the ownership of the parties to the dwelling and the size of the owners' shares (certificates from the real estate registration authority on who and in what shares the house is registered, certificate of inheritance, purchase and sale agreements, a donation, a court decision that has entered into legal force recognizing ownership of a dwelling or a part of it, etc.). Plans of a dwelling and a land plot, as well as other documents relevant to the case may be submitted.
When resolving disputes over ownership of housing, the court may, taking into account specific circumstances, satisfy a claim for recognition of family members of the right of common ownership to a dwelling jointly acquired under a contract of sale, if it is established that an agreement has been reached between these persons and a family member specified in the contract as the buyer. When buying a home, family members invested their money in its purchase for these purposes.
The requirements for the division of an unfinished residential building can be satisfied by the court only if there is permission from the land management authorities to include other persons as developers in the land allotment agreement. To clarify this issue, it is necessary to involve the land management and architecture authorities in the case. These provisions do not apply to disputes about the division of housing between spouses, since it is their common joint property and their shares are recognized as equal.
If, on the basis of paragraph 3 of Article 244 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), a dispute arises between several interested parties concerning an unauthorized facility, the courts must bear in mind that the authorized body may grant a land plot to one of the interested parties or inform the court that the land under the unauthorized structure will be provided to that party. one of the parties to which the court recognizes ownership of the building.
The socio-economic expediency specified in paragraph 4 of Article 244 of the Civil Code should be understood as the seizure of land with unauthorized construction for state needs or in circumstances of an emergency (Articles 84, 91 of the Land Code of the Republic of Kazakhstan), based on the conclusion of the authorized body. <*>
The footnote. Paragraph 4, as amended, is the normative resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 7 .
Courts should keep in mind that shared-ownership housing can be divided between its participants by agreement between them.
If no agreement is reached, the participant has the right to demand the allocation of his share in kind. At the same time, the courts should, on the basis of the submitted documents and the testimony of the parties, discuss in each case whether a technical examination should be appointed to obtain a conclusion on the possibility of allocating part of the dwelling and buildings for household purposes in accordance with the shares of the owners in compliance with technical, fire and sanitary standards, on all permissible options for allocating or transferring premises for use., including the options proposed by the parties, on the actual cost of housing and other buildings, as well as the cost of each proposed part of the house, on the amount of costs required for refurbishment, etc., an expert examination, taking into account the nature of the issues being resolved, may be entrusted by the court to the relevant specialists in construction and public utilities. The examination should be appointed and conducted in strict accordance with the requirements of the rules of procedural law. Payment of expenses for the examination should be made at the expense of the parties.
The allocation of a share to the owner means the transfer to his ownership of a certain isolated part of the dwelling and household buildings corresponding to his share, and entails the termination of the right of common ownership (Article 218 of the Civil Code). Utility rooms in apartments (kitchen, corridors, storerooms, etc.) must remain in common use and are not subject to division. In an apartment building, the share of each owner of the premises in the total property (entrances, stairs, elevators, attics, roofs, basements, etc.) cannot be allocated in kind.
Since participants in common shared ownership have equal rights in relation to housing in proportion to their share in it, the court, when allocating a share in kind, must transfer to the co-owner a part of the dwelling and non-residential buildings corresponding in size and value to his share, if possible without disproportionate damage to the economic purpose of the buildings. Disproportionate damage to the economic purpose of a building should be understood as a significant deterioration in the technical condition of the house, the conversion of residential premises into non-residential as a result, the provision of premises that cannot be used for housing due to the small size of the area or the inconvenience of using them, etc.
The impossibility of dividing a shared-ownership dwelling in kind or allocating a share from it, including in the case specified in part 2 of paragraph 4 of Article 218 of the Civil Code, does not exclude the right of a participant in shared ownership to request a determination of the order of use of the dwelling, if this procedure is not established by agreement of the parties.
In allowing such a requirement, the court takes into account the actual order of use of the dwelling, which may not exactly correspond to the shares, the need for each of the co-owners in the dwelling and the real possibility of sharing.
When establishing the order of use of a dwelling, a specific part of it is transferred to each of the co-owners, based on his share in the ownership right. At the same time, the ownership of the dwelling does not cease. The allocated space may be uninsulated and may not always correspond exactly to the shares owned by the co-owners. If a room larger than its share is transferred to the use of a co-owner, then at the request of the other co-owners, a fee may be charged for the use of a part of the room exceeding the share.
If there is a real possibility of allocating a share in kind, monetary compensation for a part of the dwelling should not be collected both in favor of the allocated one and the other co-owners if they object to receiving it, since the right to dispose of property belongs only to the owner himself and he can be deprived of the right only in cases and on the grounds specified in the law.
If it is impossible to allocate in kind, monetary compensation for a share in the ownership of the dwelling is determined by agreement of the parties. If no agreement is reached, the amount of compensation is determined by the court based on the market value of the dwelling at the time of dispute resolution, according to the claim of the outstanding owner. This takes into account the explanations of the parties, expert opinions, prices for building materials, tariffs for their transportation, labor costs in relation to the rates existing in the area, the amenities and location of the house (city, village, resort area, etc.), the degree of its wear, as well as other circumstances relevant to the correct assessment of the home. A person who has received monetary compensation loses ownership of a dwelling, as well as the right to live in it, in the absence of the consent of the owners, and therefore may be evicted at the request of any participant in the common ownership.
When dividing the spouses' homes, the court has the right to depart from the beginning of equality of the spouses' shares, based on the interests of minor children and (or) the interests of one of the spouses, if the other spouse did not receive income for disrespectful reasons or spent the spouses' common property to the detriment of the interests of the family.
Participation in the construction of an apartment building, which is the common joint property of spouses, relatives of one of them, cannot serve as a basis for increasing the share of this spouse.
Since, at the request of the creditor, it is possible to apply for the debtor's share in the dwelling, the court must bear in mind that such recovery is limited to two points: a) the debtor should have no other property to satisfy the creditor's claims, b) the other participants in the common ownership have the right to buy back this share at a price commensurate with its market value and repay the debt with the proceeds. In the absence of these conditions, the debtor's share in the right of common ownership is subject to sale at public auction.
Claims for the allocation of a share and for determining the order of use of the house are subject to the jurisdiction of the court at the location of the building.
The footnote. Paragraph 11 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).
In connection with the adoption of this resolution, Resolution No. 6 of October 1, 1974, as amended by Resolution No. 1 of the Plenum of the Supreme Court of the Kazakh SSR P74006S_ "On certain issues of judicial practice in cases of establishing Ownership rights and Dividing Housing Structures owned by citizens on the right of personal property", as amended by Resolution No. 1 of the Plenum of March 15, 1982, shall be considered invalid., and Resolution No. 4 of the Plenum of the Supreme Court of the USSR "On judicial practice in resolving disputes related to the ownership of a residential building" dated July 31, 1981 - not valid in the Republic of Kazakhstan.
According to article 4 of the Constitution of the Republic of Kazakhstan, this regulatory resolution is included in the current law, is generally binding and enters into force from the date of the first official publication.
The footnote. The resolution was supplemented by paragraph 13 in accordance with 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).
Chairman of the Supreme
Courts of the Republic of Kazakhstan:
Secretary of the Plenum, Judge
The Supreme Court of the Republic of Kazakhstan:
© 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
Constitution Law Code Standard Decree Order Decision Resolution Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases Disputes Defense Arbitration Law Company Kazakhstan Law Firm Court Cases
