On the judicial practice of applying legislation on the privatization of residential premises from the State housing stock by citizens

Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated July 18, 1997 No. 9.

      The footnote. The title is in the wording of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

      The footnote. In the title, the preamble and throughout the text, the words were replaced by the Normative Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 8.

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      Noting the ambiguity of some issues that have arisen in the practice of applying legislation in resolving disputes arising from the privatization of public housing, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to provide the following clarifications to the courts:

The main legislative acts regulating the procedure for housing privatization are currently: the Constitution of the Republic of Kazakhstan, the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Civil Code). - Law), the Law of the Republic of Kazakhstan "On State Property", as well as subordinate regulatory legal acts: Rules for the transfer of state property assigned to state legal entities from one type of state property to another, approved by Resolution of the Government of the Republic of Kazakhstan dated June 1, 2011 No. 616, Rules for the Privatization of housing from the State Housing Stock, approved by Resolution of the Government of the Republic of Kazakhstan dated July 2, 2013 No. 673 (hereinafter - Rules of Privatization), Rules for providing service housing for military personnel, calculating the size, assignment, recalculation, implementation, Termination, suspension and Resumption of housing payments, approved by Resolution of the Government of the Republic of Kazakhstan dated February 12, 2018 No. 49 and others.

     The rights of tenants established by law to privatize housing from the State housing stock cannot be limited by acts of State government bodies and local representative and executive bodies. Such acts are invalid from the moment of their adoption and should not be applied (paragraph 5, Article 3 of the Civil Code).

     The footnote. Paragraph 1 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 8; dated 04/10/2015 No. 2 (effective from the date of official publication); dated 04/20/2018 No. 7 (effective from the date of the first official publication).

When applying the legislation, it should be borne in mind that citizens who received housing from the state housing stock before the adoption of the Law have the right to privatize the occupied premises according to the rules provided for by the Housing Code of the Republic of Kazakhstan and other legislative acts.

     Citizens of the Republic of Kazakhstan have the right to privatize only one dwelling from the state housing stock in the territory of the Republic of Kazakhstan. Participation in the privatization of housing through a coupon mechanism and the presence of less than fifty percent of the share of a family member of the main tenant in a previously privatized dwelling does not prevent the subsequent exercise of his right to privatize housing from the state housing stock.

      Residential premises provided to citizens from the state housing stock after the enactment of the Law are subject to privatization in accordance with the procedure and conditions provided for by it.

     The footnote. Paragraph 2 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

Upon transfer of state-owned enterprises, institutions, organizations to another form of ownership or upon their liquidation, the housing stock under the economic management of enterprises or the operational management of institutions must be transferred to the economic management or operational management of the legal successors of these enterprises and institutions, other legal entities, or to the local executive body in accordance with the established procedure, while preserving all housing the rights of citizens, including the privatization of housing. At the same time, if the legal successors of state-owned enterprises and institutions that have changed the form of ownership have built or acquired residential premises at their own expense, then such premises can be privatized by persons living in them under a lease agreement only with the consent of the owner.

     The footnote. Paragraph 3 as amended by the regulatory resolutions of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 8; dated 12/30/2011 No. 5 (effective from the date of official publication).

Considering that in connection with the refusal to privatize the residential premises occupied by the employer and family members, a dispute arises between the latter and the executive authorities carrying out the privatization, the applications of such persons are considered in the order of the claim proceedings.

      It should be borne in mind that the subject of the dispute is the rights of citizens to privatize housing, therefore, the state fee for submitting such applications should be charged in the amount provided for in subparagraph 7) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and other mandatory payments to the Budget (Tax Code)."

     From the statements of claim of persons applying for privatized residential premises based on the motive of ownership of this premises to the testator, making demands for the allocation of a share in common joint ownership, as well as in the case when the privatization was not properly executed during the testator's lifetime, the state fee is paid based on the actual value of the premises about which the dispute arose, determined by at the time of filing the claim, that is, as with property-related claims (subparagraph 1) of paragraph 1 of Article 610 of the Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget (Tax Code)").

     The footnote. Paragraph 4 as amended by regulatory rulings of the Supreme Court of the Republic of Kazakhstan dated 06/18/2004 No. 8; dated 12/30/2011 No. 5 (effective from the date of official publication); dated 04/20/2018 No. 7 (effective from the date of the first official publication).

According to paragraph 2 of article 13 of the Law, a privatized dwelling becomes the common joint property of the tenant and family members permanently residing with him, including those temporarily absent, unless otherwise provided by an agreement between them.

     In this regard, when considering specific cases, it is necessary to identify all persons who have the right to live in a privatized apartment or house, to clarify their relationship to the privatization agreement. It should also take into account the requirement of the law that citizens permanently residing in the Republic of Kazakhstan have the right to buy out occupied residential premises only once with the consent of all adult family members. At the same time, citizens who are not family members of the owner and who live in the latter's dwelling as an employer have the right to acquire ownership through privatization of another subsequently acquired dwelling from the state housing stock on the terms and in accordance with the procedure established by the legislation of the Republic of Kazakhstan.

     The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

In the event of a dispute over the legality of a contract for the transfer of residential premises to the ownership of one of its users, the title documents for such premises may, at the request of interested parties, be declared fully or partially invalid by a court on the grounds established by civil law to invalidate the transaction (Chapter 4 of the Civil Code).

     The footnote. Paragraph 6 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

Paragraph 7 of the Rules of Privatization lists subjects of housing legal relations who gratuitously receive ownership of the dwellings they occupy from the state housing stock. The registration of a privatization agreement is carried out only for a person who has such benefits. In these cases, the privatized premises are transferred, with the consent of adult family members, into the common joint ownership of the person enjoying the specified benefit and his family members. The owner of the privatized premises may not, at his discretion, evict persons from it who are not included in the privatization agreement.

      When resolving these disputes, clarifying the arguments and objections of such persons against eviction, the courts must verify the circumstances and conditions under which they agreed to register ownership rights in the name of a family member enjoying benefits.

     If necessary, when a citizen was misled or unable to understand the significance of his actions when refusing to privatize, or when the owner violated the agreement on the terms of such refusal, citizens should be informed of their right to file a counterclaim for invalidation of the concluded agreement on the privatization of residential premises.

     The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

Since minors who live together with the tenant and are his family members, according to article 22 of the Law, have equal rights arising from the lease agreement for residential premises, they become participants in the common joint ownership of this premises on an equal basis with adult persons (users) in the case of privatization of the occupied premises.

In case of violation of the property rights of a minor family member as a result of his non-inclusion in the privatization agreement, the minor's parents or other persons representing his interests have the right, with the consent of other owners of residential premises, to apply to the housing privatization authorities with an application for the inclusion of a minor family member in the privatization agreement or to the court with the same claim.

     The footnote. Paragraph 8 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

Citizens who have become owners of privatized residential premises, according to Article 188 of the Civil Code, have the right to own, use and dispose of it at their discretion, without violating the rights and legally protected interests of other persons and the state.

      In this regard, it should be borne in mind that since the residential premises purchased through privatization become the common property of the citizens occupying this premises, the alienation of part of such property by a separate participant is possible only after the establishment of shared ownership of this premises. The sale of one of the participants in the common shared ownership of a privatized apartment to an outsider is possible only if the other owners waive their right of first refusal or do not exercise this right within the period provided for in Article 216 of the Civil Code.

     The footnote. Paragraph 9 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

The exchange of residential premises transferred by way of privatization into the common ownership of citizens is possible only with the consent of all participants in the common ownership.

By virtue of article 29 of the Law, compulsory (against the will of the owner) termination of the right of ownership of a dwelling is not allowed, except for foreclosure on the dwelling along with the land plot under the obligations of the owner in cases and in accordance with the procedure provided for by legislative acts, seizure (redemption) of the land plot on which the house is located for state needs, requisition and confiscation, and also in other cases stipulated by the Civil Code.

     When considering specific cases related to the termination of common joint ownership of residential premises by paying a sum of money or other compensation to a participant in ownership by other co-owners instead of allocating his share in kind, the courts should keep in mind that such payment is allowed only with the consent of the owner.

 

      The Civil Code (article 218) stipulates that the owner's share may be compensated in cash or otherwise without the consent of the owner, or by a court decision, the common property may be sold at public auction with subsequent distribution of the proceeds between the participants in the common ownership in proportion to their shares.

     When considering disputes about the division of a privatized apartment (house), the courts may allocate the owner's share in monetary terms and, if the latter does not agree, decide to sell it at public auction, provided that the share of the relevant owner is insignificant and cannot actually be allocated, or the owner whose share is allocated is not significantly interested in using the common property and he does not live in a disputed apartment, is provided with another living space, and also if it is impractical to divide the common property.

     Upon receiving compensation, the owner loses the right to a share in the privatized dwelling.

     The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).      12. (Paragraph 12 was deleted by the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated June 18, 2004 No. 8)

In accordance with paragraph 6 of Article 13 of the Law, a dwelling (apartment) inhabited by several tenants may be privatized only with the consent of the tenants and their adult family members. In this case, the dwelling (apartment) becomes the common shared property of all tenants. The privatization of a dwelling (apartment) in violation of the specified requirement of the Law must entail the recognition of the contract as invalid with the consequences specified in Article 157 of the Civil Code. When resolving such disputes, it should be borne in mind that amendments to the privatization agreement can take place only if the conditions and procedures provided for in Articles 401, 402 of the Civil Code are met, with the consent of the parties or at the request of some of them, when the legality of the agreement is not disputed.

     The footnote. Paragraph 13, 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 04/10/2015 No. 2 (effective from the date of official publication).

In accordance with paragraph 12 of the Rules of Privatization, the decision on the privatization of housing is made by:

     from the communal housing stock - housing commissions of local executive bodies;

     from the housing stock of state-owned enterprises - housing commissions of state-owned enterprises;

     from the housing stock of state institutions - housing commissions of state institutions.

     The standard regulation on housing commissions is approved by the authorized body implementing state policy in the field of housing relations.

      The list of documents submitted to the housing commission for consideration for the acquisition of ownership of housing through privatization is defined in paragraph 14 of the Rules of Privatization, where housing commissions are prohibited from requesting additional documents not provided for by the Rules of Privatization.

      The grounds for refusal to privatize a dwelling by the housing commission, provided for by the requirements of paragraph 16 of the Rules of Privatization, are exhaustive.

     Citizens cannot privatize a dwelling from the state housing stock if:

     they have another dwelling on the right of ownership in the territory of the Republic of Kazakhstan, while the presence of a share of less than fifty percent in the dwelling is not taken into account.;

     have an obligation under a housing mortgage loan agreement in the territory of the Republic of Kazakhstan;

     They have alienated the housing that they owned during the last five years before applying for privatization.

     The courts should clarify that if a citizen has the right to privatize residential premises from the state housing stock and has submitted an application to an authorized state body, in the event of his death, the court will recognize the right of privatization for them at the claim of the heirs, since the testator expressed his will to conclude a contract, did not withdraw his application and for reasons beyond his control for the following reasons, I have not signed or registered the contract. The court's decision to satisfy the claim is the basis for the conclusion by the state body of a privatization agreement with the heirs in accordance with the procedure provided for by law.

     This does not detract from the right of the heirs to privatize a dwelling equated to an official one, since the right to privatize this dwelling passes to the family members of the deceased (deceased).

     A part of a dwelling owned by the State in the form of extortionate property may be privatized by the owner of another part of this dwelling, who has a preferential right to privatization, in accordance with the procedure established by legislative acts.

     The footnote. Paragraph 14 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

      14-1. In accordance with paragraph 2 of Article 9 of the Law of the Republic of Kazakhstan dated March 1, 2011 "On State Property", it is allowed to transfer state property from one type of state property to another.

      The procedure for the transfer of the specified property is determined by the Rules for the Transfer of State property assigned to state legal entities from one type of state property to another, approved by Resolution of the Government of the Republic of Kazakhstan dated June 1, 2011 No. 616.

     The footnote. The regulatory resolution was supplemented by paragraph 14-1 in accordance with the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

In accordance with the Law, office housing is a dwelling with a special legal regime provided from the housing stock of a state institution and intended for occupancy by citizens of the Republic of Kazakhstan for the period of their duties related to the nature of their employment relations, as well as by citizens of the Republic of Kazakhstan participating in active measures to promote employment in accordance with the legislation of the Republic of Kazakhstan on employment.

     Residential premises included in the number of official premises, except those equated to official dwellings, are not subject to privatization.

     The legal regime of housing equated to official housing differs from the legal regime of official housing, which is provided from the communal housing stock to civil servants, employees of budgetary organizations, military personnel, candidates for cosmonauts, cosmonauts, employees of special state bodies and persons holding public elected positions, or from the housing stock of a state enterprise to employees of this state enterprise. Therefore, when considering disputes arising from the privatization of office premises, the courts should clarify the legal status of the dwelling.

     At the same time, it should be noted that tenants of a dwelling equated to an office one have the right to privatize the premises they occupy under certain conditions with the consent of the owner (Article 101 of the Law and paragraphs 3, 4, 5 of the Rules of Privatization).

The footnote. Paragraph 15 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).      16. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 04/10/2015 No. 2 (effective from the date of its official publication).

The allocation of a share to a participant in common joint ownership of a privatized dwelling, which is a separate apartment, is possible provided that the share due to him is allocated in the form of a separate isolated living room with the right to share utility rooms. This resolution shall enter into force from the date of its publication.

© 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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