On some issues of the courts' application of land legislation
Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 6.
The footnote. The entire text has been amended in Kazakh, the text in Russian is not changed by the regulatory decree of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
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In order to ensure the correct and uniform application of land legislation, the plenary session of the Supreme Court of the Republic of Kazakhstan
p o s t a n o v l I e t:
Legislation on issues regulating land relations is based on the Constitution of the Republic of Kazakhstan and consists of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code) and regulatory legal acts of the Republic of Kazakhstan adopted in accordance with it.
Property relations related to the ownership, use and disposal of land plots, as well as transactions with them, are regulated by the civil legislation of the Republic of Kazakhstan, unless otherwise provided by the land, environmental, water legislation, legislation on the subsoil, on flora and fauna and on specially protected natural territories of the Republic of Kazakhstan.
The normative legal acts regulating land relations adopted before the entry into force of the Land Code are applied to the extent that they do not contradict this Code.
Disputes arising from land relations are considered in court.
Land relations should be understood as relations on the use and protection of land related to the management of land resources, the assignment of land plots to individual entities, the exercise of ownership and other rights to land.
Claims (applications) arising from land relations include, in particular, the following requirements: challenging the legality of acts of state bodies on the provision of land and on their seizure (Chapters 2, 3, 4, 5, 9 of the Land Code); compensation for losses in connection with the seizure of land (Chapters 2 and 20 of the Land Code of the Land Code); on challenging the right of ownership and land use (Chapters 3 and 4 of the Land Code); on appealing the procedure for granting land plots by akims (Articles 43 to 47 of the Land Code); on appeal of the pledge agreement (Chapter 8 of the Land Code); on the seizure of land plots in accordance with Articles 92, 93, 94 of the Land Code; on the establishment or termination of an easement (Chapter 7 of the Land Code); on refusal to register and issue state acts certifying ownership or land use rights to a land plot and others.
The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
In accordance with paragraph 1 of Article 117 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), land plots are classified as immovable property. In this regard, claims for rights to land plots must be submitted to the court in accordance with part one of Article 31 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC) at their location.
Claims for rights to land plots in which the parties are individuals engaged in individual business activities without forming a legal entity and legal entities are considered by specialized interdistrict economic courts at the location of the land plot.
The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
When preparing a case for trial, the courts should establish the nature of the relationship between the parties, the causes and time of the disputed legal relationship, and invite the parties to provide title and identification documents for the land plot.
Title document for a land plot is a document confirming the occurrence of legal facts (legal structures) on the basis of which 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, who own a land plot by right of ownership or who have bought the right of temporary paid land use (lease).
An identification document for a land plot is a document containing the identification characteristics of a land plot necessary for the purposes of maintaining land, legal and urban planning cadastres.
Identification documents include an act on the right of private ownership of a land plot, an act on the right of permanent land use and an act on the right of temporary (paid, gratuitous) land use.
Identification documents for a land plot are produced and issued by the Government for Citizens State Corporation, which conducts the state land cadastre.
Upon transfer of rights to a land plot, the identification document is transferred to the acquirer or another rightholder. In the absence of changes in the identification characteristics of the land plot by the body responsible for maintaining the state land cadastre, a new identification document is not issued, but information on the transfer of rights to the land plot is entered in the land registry and the unified state register of lands.
Information on the transfer of rights to a land plot is entered on the basis of materials provided by the body responsible for state registration of rights to immovable property.
Title and identification documents for land plots provided to citizens and legal entities prior to the entry into force of the Land Code in accordance with the previously effective legislation of the Republic of Kazakhstan remain legally binding, subject to changes in land rights established by the land legislation of the Republic of Kazakhstan.
The replacement of such documents with documents certifying ownership or land use rights to land plots in accordance with the Land Code is carried out at the request of the right holders.
The footnote. Paragraph 4 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
Courts should verify the powers of the local executive body that made the decision to grant a land plot to private ownership or use, as well as to seize it, in accordance with the requirements of articles 16, 17, 18, and 19 of the Land Code. If the akim exceeds his powers in granting a land plot, his decision may be invalidated by a court on the grounds provided for by law, in accordance with Chapter 29 of the CPC.
For these purposes, the court establishes the location and boundaries of the land plot, checks the title documents for the land that is part of the territory of a particular village, city, district or region.
The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
According to articles 26, 29, 30, 33 of the Law of the Republic of Kazakhstan dated January 23, 2001 No. 148-II "On Local Government and Self-Government in the Republic of Kazakhstan", the akim represents the interests of the relevant administrative-territorial unit in relations with citizens, legal entities and government agencies. Consequently, when challenging decisions and actions on the provision or seizure of land plots, the akim of the relevant territorial unit is a party to the case. Therefore, when the second party to the case is an individual engaged in entrepreneurial activity without forming a legal entity or a legal entity, such statements, in accordance with Article 27 of the CPC, are subject to the jurisdiction of specialized interdistrict economic courts.
The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
In accordance with paragraphs 1, 2 of Article 118 of the Civil Code, the emergence, modification and termination of rights (encumbrances of rights) to immovable property are subject to state registration in cases stipulated by the Civil Code and the Law of the Republic of Kazakhstan dated July 26, 2007 No. 310 "On State Registration of Rights to Immovable Property" (hereinafter – the Law on State Registration of Immovable Property).
Real rights, along with the right of ownership, in accordance with paragraph 1 of Article 195 of the Civil Code include: the right of land use; the right of economic management; the right of operational management; the right of limited purpose use of someone else's real estate (easement); other property rights provided for by the Civil Code or other legislative acts.
Rights (encumbrances of rights) to immovable property arise, change and terminate from the moment of state registration, unless otherwise established by the Civil Code and the Law on State Registration of Immovable Property.
In accordance with paragraph 2 of Article 63 of the Land Code, foreclosure on a land plot, on the right of permanent and long-term temporary land use is carried out in accordance with the procedure established by the civil and civil procedure legislation of the Republic of Kazakhstan, and is subject to registration.
The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
When resolving a dispute over the ownership of the same land plot by two or more owners (land users), as well as violations of the boundaries of adjacent land plots, the courts should take into account the requirements established by Article 43 of the Land Code. To check the grounds for the emergence of land rights for each of the parties, if necessary, to comply with the procedure for allotment of land, as well as title documents, and the chronology of registration of rights to immovable property.
According to paragraph 10 of Article 43 of the Land Code, for the use and disposal of a land plot, it is necessary to establish its boundaries in kind (on the ground) and draw up title documents.
Courts should keep in mind that the executive body may change or reverse its decision to grant the right to a land plot before fulfilling the requirements specified in it, for example, before a person receives a state act on the land plot. From the moment of receipt of these documents, the land user is granted the right to a land plot in the form of private ownership, permanent or temporary land use, therefore, a dispute about the right can only be resolved in court.
If there are equivalent rights to the same land plot or part of the plot, the courts should proceed from the priority of previously acquired rights to immovable property, established by the date of the right in accordance with civil law.
In a dispute between owners of neighboring plots that are not their original owners, if the boundaries of land plots are established, the courts should proceed from the historically established boundaries of the plots. A dispute between the owners of two land plots should not entail a violation of the rights of others. Court decisions should not contribute to the emergence of new legal disputes between owners of other land plots.
If the court finds that a dispute over the right to a land plot arose as a result of a violation of the procedure prescribed by Article 43 of the Land Code for granting rights to land plots, as a result of incorrect establishment of the boundaries of the land plot on the ground or improper registration of the identification document for the land plot, which led to the imposition of the boundaries of the land plot, then such a dispute should be considered in accordance with the procedure prescribed by Article 43 of the Land Code. established by Chapter 29 of the CPC, by challenging the decision of the local executive body.
The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
The right of ownership or the right of economic management or the right of operational management of buildings (structures, structures) entails, in accordance with the procedure established by law, respectively, the right of ownership or the right of permanent land use or the right of temporary long-term land use on the land plot occupied by the specified buildings (structures, structures), except in cases provided for by the Land Code (Article 52 of the Land Code the Code). These rights to a land plot arise on the basis of a decision of the akim in accordance with the requirements of Articles 23, 34, 37 of the Land Code when providing the owner of the land plot with a state land deed and its registration. The land plot and the buildings (structures, structures) erected on it are closely related to each other. In this regard, the alienation of ownership of a land plot that is occupied by buildings (structures, structures), as well as intended for their operation, without appropriate alienation of the specified real estate is not allowed.
The grounds for termination of the right of private ownership of a land plot or land use rights are provided for in article 81 of the Land Code.
The seizure of a land plot from the owner and the right of land use from the land user without their consent is not allowed, except for the cases provided for in paragraphs 2 and 3 of the above-mentioned article.
The compulsory seizure of land plots that are not used for their intended purpose and have not been developed or used in violation of the legislation of the Republic of Kazakhstan is permitted on the basis of articles 92, 93 of the Land Code and in accordance with the procedure established by Article 94 of the said regulatory legal act.
The courts should establish exactly what violations were committed by the owner or land user, when and by whom they were identified, whether they are grounds for the compulsory seizure of land, and what measures have been taken to eliminate the consequences of violations.
The courts should keep in mind that a claim for the compulsory seizure of a land plot in the case provided for in articles 92 and 93 of the Land Code for those violations for which administrative penalties are not provided is filed after the expiration of the prescription given to the owner of the land plot or the land user to take measures to use the land plot for its intended purpose and to eliminate violations legislation of the Republic of Kazakhstan.
The application of paragraph 2 of Article 92 of the Land Code applies to land plots from the moment of their initial provision by the authorized body, as well as those that were subsequently the subject of alienation under civil law transactions. When considering cases in this category, the courts should check whether the original and subsequent owners carried out excavation, construction and installation work, whether permission was received from authorized bodies for construction work, a draft design, and investigate the reasons for the late development of land.
The footnote. Paragraph 10 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 official publication); as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 01/19/2018 No. 1 (effective from the date of the first official publication).
In accordance with Article 267 of the Civil Code, if, as a result of the issuance of a regulatory or individual act of a state body or official that does not comply with the law, the rights of the owner and other persons to own, use and dispose of property are violated, such an act is recognized as invalid in court. The losses caused to the owner as a result of the issuance of these acts are subject to full compensation by the relevant state body from the funds of the relevant budget. For the same reasons, losses incurred by owners and land users are fully reimbursed (Article 165 of the Land Code). At the same time, it should be borne in mind that the land legislation establishes the specifics of compensation for losses to owners and land users. Therefore, courts, taking into account the specifics of land legal relations and determining the procedure for compensation of damages, should be guided by the provisions of article 166 of the Land Code and the general provisions of civil legislation.
The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
In accordance with article 53 of the Land Code, a land plot may be jointly owned or shared by two or more persons. In turn, common ownership of a land plot or common land use takes the form of shared ownership or shared land use with the determination of the share of each of the owners and land users, or common joint ownership, joint land use without determining the shares.
Taking into account this provision, the courts, when considering claims for the division of a land plot or determining the order of use, must take into account the specifics provided for in articles 54 to 60 of the Land Code.
When considering claims related to the allocation of a land plot upon the withdrawal of a member of a peasant farm from its membership, the courts should bear in mind that the land plot provided to the peasant farm is on the right of common joint or shared land use, or on the right of common joint or shared ownership, unless otherwise provided by the contract. In this regard, the courts must clarify the form of ownership or land use of the land, the terms of the contract between the members of the peasant farm and other circumstances to resolve the issue of allocating the land in accordance with the requirements of articles 54 to 59 of the Land Code.
Upon termination of the activity of a peasant or farm, the division of property, land and land use rights between the participants is carried out on the terms and in accordance with the procedure provided for in paragraphs 2, 3, 4 of Article 49 of the Entrepreneurial Code of the Republic of Kazakhstan, as well as Article 225 of the Civil Code.
The footnote. Paragraph 12, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 01/19/2018 No. 1 (effective from the date of the first official publication).
When considering a dispute over the use of a land plot under the right of common joint ownership or the right of common joint land use, which arose after the use of a common plot had previously been determined between the co-owners, the courts should bear in mind that an increase by one of the co-owners in their share of common ownership of a house through an extension, superstructure or rebuilding itself By itself, it is not a reason for changing the size of the land plot. In case of alienation of a part of a residential building by one of the owners to another, including the transfer of its part as a result of inheritance, donation or otherwise, the order of use may be determined again, provided that the rights of other owners of the house are not infringed. If one of the owners of the house alienated part of the building belonging to him in favor of a third party, then the previously established procedure for using the land plot will also be mandatory for the new owner (Article 19 of the Law of the Republic of Kazakhstan dated April 16, 1997 No. 94-I "On Housing Relations") (hereinafter – the Law on Housing Relations).
The footnote. Paragraph 13 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
When making a decision on a dispute concerning the determination of the procedure for the use of a common land plot for individual housing construction, the operative part of the decision must specify: the size and boundaries of the plots transferred to each of the parties; the size and boundaries of the common land; the size and boundaries of passages through the plot to the house, buildings, structures and other circumstances worthy of attention.
The courts should keep in mind that a land plot cannot be allocated in kind for an individual member of a condominium, since in accordance with articles 62 of the Land Code and article 31 of the Law on Housing Relations, the land plot belonging to the condominium belongs to the participants on the right of common shared ownership. At the same time, each owner or permanent user (tenant) of the premises has the right to use the land plot only to meet household needs.
The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
When considering claims for the return of illegally seized lands and the demolition of unauthorized buildings, the courts, in accordance with Article 244 of the Civil Code, must take into account the requirements of the land legislation of the Republic of Kazakhstan, legislation on architectural, urban planning and construction activities in the Republic of Kazakhstan and other legislation of the Republic of Kazakhstan.
The footnote. Paragraph 16 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
The acquisition of ownership rights to state-owned land plots on the basis of the statute of limitations is not allowed, since the land legislation of the Republic of Kazakhstan provides for a different procedure for the acquisition of property rights to these land plots. The procedure for acquiring rights to State-owned land is established in article 43 of the Land Code.
The footnote. Paragraph 17 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
17-1. With regard to the provisions of articles 43 and 48 of the Land Code, the courts should bear in mind that the right to a land plot from state-owned lands is granted without bidding (tenders, auctions) only in the cases provided for in paragraph 1 of Article 48 of the Land Code.
The footnote. The regulatory resolution was supplemented by paragraph 17-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
17-2. The courts should take into account that the termination of the lease agreement and the contract of sale of a land plot in connection with non-intended use or use in violation of the law, with the disagreement of the tenant or owner, cannot be carried out in court, since articles 92 and 93 of the Land Code define a special procedure for the compulsory seizure of land.
The procedure for the seizure of a land plot provides for the observance of certain deadlines and procedures, and requires the provision of certain evidence. As a rule, such requirements are not included in the terms of lease, purchase and sale agreements.
In case of compulsory seizure of land plots that are the subject of pledge, the legal consequences specified in paragraph 1 of Article 324 of the Civil Code apply.
The footnote. The regulatory resolution was supplemented by paragraph 17-2 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication).
All disputes related to the right to a conditional land share are subject to judicial review. At the same time, it should be borne in mind that if the holder of the right to a conditional land share is not realized before January 1, 2005, within the period established by paragraph 4 of Article 170 of the Land Code in force until July 20, 2011, then his right to a conditional land share becomes invalid, and the land plot is due to unrealized conditional land shares by decision of the district (city) executive body are to be credited to a special land fund.
To clarify that individuals entitled to a conditional share were required to legitimize their right by: buying out a land plot into private ownership; obtaining a land plot for temporary common or separate land use for independent farming or commercial agricultural production; transferring as a contribution to the authorized capital of an economic partnership, in payment for shares as a shareholder of the company or as a contribution to a production cooperative.
The holder of conditional land shares, upon leaving the membership of an economic partnership to form a peasant or farm, has the right to allocate (divide) a share or share in kind, including a land plot, or to pay the value of the share or share. In this case, the location of the land plot allocated in kind is determined in accordance with the procedure provided for in Article 54, paragraphs 3 and 4 of Article 101 of the Land Code.
The footnote. Paragraph 18, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 01/19/2018 No. 1 (effective from the date of the first official publication).
The subjects of private ownership of land plots according to paragraph 2 of Article 20 of the Land Code may be citizens and non-governmental legal entities.
At the same time, the courts should keep in mind that when a citizen who is the owner of a land plot renounces the citizenship of the Republic of Kazakhstan, the ownership right in accordance with paragraph 5 of Articles 24 and 66 of the Land Code is subject to alienation or renewal.
When resolving the issue of granting land plots to private ownership to foreign citizens, stateless persons, and foreign (non-governmental) legal entities, the courts should be guided by paragraph 4 of Article 23 of the Land Code. According to paragraph 2 of Article 34 of the Land Code, the right of permanent land use cannot belong to foreign land users.
The right of temporary paid land use (lease) for commercial agricultural production is granted to foreigners, stateless persons and foreign legal entities, as well as to legal entities in whose authorized capital the share of foreigners, stateless persons, and foreign legal entities is more than fifty percent, for a period of up to twenty-five years (subparagraph 2) of paragraph 5 Article 37 of the Land Code, which has been suspended until December 31, 2021 in accordance with the Law of the Republic of Kazakhstan dated June 30, 2016 No. 5-VI "On the suspension of Certain Provisions of the Land Code of the Republic of Kazakhstan and the entry into force of the Law of the Republic of Kazakhstan dated November 2, 2015 "On Amendments and Additions to the Land Code of the Republic of Kazakhstan").
Upon the withdrawal of a citizen who holds a conditional land share from the citizenship of the Republic of Kazakhstan, his right to a land share is considered terminated (paragraph 7 of Article 103 of the Land Code).
The footnote. Paragraph 19, as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 12/30/2011 No. 5 (effective from the date of official publication); dated 01/19/2018 No. 1 (effective from the date of the first official publication).
The right of limited targeted use of someone else's land, including for passage, passage, laying and operation of necessary communications, hunting and fishing farms and other needs, is an easement.
The owner of a land plot or a land user is obliged to grant interested individuals and legal entities the right to limited targeted use of the land plot only in cases provided for by the Land Code and other legislative acts of the Republic of Kazakhstan.
The right of limited purpose use of someone else's land (easement) may arise: directly from a regulatory legal act, on the basis of an agreement between an interested person and the owner or land user, on the basis of an act of a local executive body, on the basis of a court decision that is issued in the case of a requirement to establish an easement on the part of the interested person, in other cases provided for by law Of the Republic of Kazakhstan.
The grounds and procedure for state registration of an easement are provided for in article 75 of the Land Code.
A private easement is based on a contract, the conclusion of which is mandatory, therefore, the provisions of Article 399 of the Civil Code are subject to application to these legal relations.
To clarify that when considering cases on the establishment of an easement, the courts should examine the question of what specific needs the plaintiff's claim is aimed at and whether they relate to those needs that can be provided by establishing an easement, given its exceptional nature.
When determining the amount of payment from the persons in whose interests the easement is established, the court has the right to involve a specialist, take into account the established certain relationships between the parties regarding the use of the land (before the establishment of the easement), business practices, resolve disputes based on the criteria of fairness and reasonableness.
The amount of payment can be changed by agreement of the parties, and if an agreement is not reached, by a court decision.
The footnote. Paragraph 20 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 19.01.2018 No. 1 (effective from the date of the first official publication). 21. Abrogated by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 06/25/2010 No. 1 (for the procedure of entry into force, see paragraph 15).
To invalidate the Resolution of the Plenum of the Supreme Court of the Republic of Kazakhstan No. 2 dated May 14, 1998 "On certain issues of the practice of applying land legislation by courts".
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
© 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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