On the elimination of obstacles by destroying an independently built structure and fence, obliging them not to interfere with entering and leaving the premises
May 28, 2025 No. 6001-25-00-3GP/161 in the composition of the judicial collegium for civil cases of the Supreme Court of the Republic of Kazakhstan: presiding judge - Bekturganov M. zh., judges Savinova A. S., Moldakhmetova T. A., representative of the plaintiff Z. Ba, representative of the defendant G. Sarzhanov, at an open court session, through a mobile video communication device, the plaintiff ka ma through the violation of the adopted in a civil case initiated by a claim to remove barriers, oblige the family not to interfere with their entry into the premises
Considering the civil case received by the petition of the representative of the defendant G. Sarzhanov on the Cassation review of the decision of the Nauryzbay District Court of Almaty dated August 8, 2024 and the decision of the Judicial Board of the Almaty city court on civil cases dated November 18, 2024, K. Ma appealed to the defendant with this claim to the court.
By the decision of the Nauryzbay District Court of Almaty dated August 8, 2024, the claim was satisfied.
The owner of 2 apartments in Almaty, Nauryzbay district, Karagaily microdistrict, Makash Tatimova Street, 79, is obliged to remove obstacles by destroying the fence and the fence located on the land plot of A. OA and not interfere with the defendant to enter and leave the plaintiff's family's premises.
By the decision of the Judicial Board of the Almaty city court for civil cases dated November 18, 2024, the court decision was left unchanged. In the petition, the applicant disagreed with the decisions taken by the local courts, indicating that the conclusions do not correspond to the circumstances of the case, and asked to cancel the judicial acts.
The representative of the defendant examined the opinion in support of the petition, the objection of the plaintiff's representative, the case documents, discussed the arguments of the petition, and the judicial board came to the conclusion that the decision of the Appellate Judicial Board is subject to cancellation due to the following grounds.
In accordance with Part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the APC), the grounds for reviewing judicial acts that have entered into legal force in cassation are significant violations of the norms of material and procedural law, which led to the issuance of an illegal judicial act.
In this civil case, such violations were committed. According to the case documents, A. O. is recognized as their owner in accordance with the contract of sale of a house with a land plot of 0.0057 hectares as of January 31, 2013.
In accordance with the decree of the mayor of the Republic of Kazakhstan dated September 25, 2003, 0.0035 hectares of additional land were granted to A. OA, and a land plot with a total area of 0.0110 hectares was assigned the right of ownership for peasant farming. On December 11, 2023, a state act on a land plot on the right of private ownership was issued.
According to the information of the branch of NAO" state corporation" government for citizens " in Almaty as of November 21, 2023, the area of land owned by M. Tatimova Street, house 79, is 0.1140 hectares, including the share size of the land plot:-0.0560 hectares belong to K. A. Ma (3 apartments); - 0.0110 hectares belong to A. K. OA (2 apartments); - 0.0470 hectares belong to S. A. Halimsapieva (1 apartment).
The plaintiff appealed to the court with a claim, in which the defendant indicated that the land plot in common shared ownership was illegally fenced independently, without the consent of the neighbors, and went beyond the amount of 0.0110 hectares of land belonging to him. The defendant committed an illegal act by pouring the foundation, blocking the only way for the plaintiff and his family members.
As a result, the plaintiff and his family are forced to go outside only through the courtyard of the neighboring house behind the House.
The court of first instance, deciding to satisfy the claim, referred it to Article 8 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the civil code), citing the fact that the plaintiff has used the disputed road since 1980, and the defendant, being the owner of the land plot since 2013, did not prohibit it, and at the same time, an agreement on personal easement was concluded between the parties.
In addition, the local court concluded that the defendant's blocking of the plaintiff's only exit by erecting a disputed structure violates his legal rights, and that the alternative path proposed by the defendant does not actually resolve the dispute and may be repeated in the future. The appellate court agreed with this conclusion of the court and left the decision unchanged.
The judicial collegium of the Supreme Court does not agree with the conclusions of the court of Appeal in connection with the admissibility of violations of the norms of material and procedural law.
In accordance with Part 6 of Article 53 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the code), the procedure for using a land plot in common ownership (common land use) is established by a contract between participants in common ownership (common land use).
In case of failure to reach an agreement between them, the procedure for use is determined by the court. The agreement of the participants or the decision of the court on the procedure for using the land plot is subject to state registration in accordance with the procedure established by the legislation of the Republic of Kazakhstan.
The object, which is located by local courts at the address: Almaty, Nauryzbay district, Karagaily microdistrict, M. Tatimov Street, house 79, Apartment 2, during the inspection of housing on a land plot regarding compliance with requirements in the field of architectural, urban planning and construction activities (literch.A.), a residential building (litera1), a roof (Litera) was erected, at the same time, a foundation measuring 5.5 m x 6.6 M was laid under the existing roof with a basement device measuring 2.7 m x 3.0 m, a height of 1.73 m.
In addition, the Appellate Board did not examine and take into account the fact that in the Land Management Project a land plot with an area of 0.0110 hectares was fenced, there are no restrictions and encumbrances on the use of the land plot, the neighbors signed an agreement, the disputed construction sites were located when the defendant bought the house, it was legalized, the Appellate Board did not give a proper assessment of the decision of the court of first instance.
In accordance with Article 69 of the code, a private owner, land user or subsurface user conducting exploration or geological survey operations has the right to demand from the subject of private ownership or land use rights to a neighboring land plot, and, if necessary, from subjects of private ownership or land use rights to another land plot the right to limited use of these plots (private easement).
In accordance with paragraph 5) of Part 2 of this article, the owner or land user of a land plot on which the encumbrance of a private easement is imposed has the right to demand a proportional payment from the persons for whom the easement has been established in the interests, unless otherwise provided by legislative acts of the Republic of Kazakhstan. The amount of payment for a private easement is determined by the agreement on the establishment of a private easement or by a court decision
At the same time, the appeal board incorrectly concluded that before the filing of the claim, a separate easement agreement was concluded between the parties. Because the constitutional rights of the parties should not be limited.
In accordance with Part 3 of Article 188 of the Civil Code, the owner has the right to take any actions in relation to the property belonging to him at his own discretion, to own, use and otherwise dispose of the property
The court of Cassation instance has the right, in the interests of legality, to go beyond the limits of a petition, submission or protest and to check in full the legality of the appealed, challenged judicial act. In accordance with the requirements of the APC, the court decision must be legal and reasonable.
The court bases the decision only on the evidence presented by the parties and studied at the hearing.
In this context, the board concludes that the circumstances relevant to the case have not been established by the local courts, the case documents have not been studied, the legal assessment of the existing legal relationship has not been given, the requirements of the procedural norm have not been observed, the scope of circumstances relevant to the case has not been fully defined, and the Appellate Board has not allowed the applicant to defend his rights and interests.
On the basis of the above, the resolution of the judicial board for civil cases of the Almaty City Court of November 18, 2024 is canceled, and the case is subject to referral to the Almaty city court for new consideration in a different composition.
The judicial board, guided by subparagraph 4) of Part 2 of Article 451 of the code of Criminal Procedure
Decided: to cancel the decision of the Judicial Board of the Almaty city court for civil cases dated November 18, 2024. Send the civil case to the Almaty city court for fresh consideration in a different composition. Satisfy the defendant's representative.
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