On the legality of granting the right of private ownership of land.
Challenging the legality of granting or refusing to grant rights to land plots accounts for the largest number of administrative cases considered by the courts of the republic in this category.
In 2022, there is an increase in claims received compared to the second half of 2021. The procedure for granting land plots is regulated by article 43 of the Land Code.
This norm regulates the general procedure for granting the right to a land plot, with the exception of the case of granting a land plot for the construction of an object within a locality and lands put up for auction (auctions) in accordance with Article 48 of the Land Code.
The provision of state-owned land plots to the ownership of citizens and non-governmental legal entities that have the right to purchase land plots in private ownership is carried out on a reimbursable basis.
The provision of land plots to the ownership of citizens and non-governmental legal entities may be carried out free of charge in cases stipulated by the Land Code and other legislative acts of the Republic of Kazakhstan.
In accordance with subparagraph 5) of paragraph 1 of Article 48 of the Land Code, the provision of land plots or the right to lease land plots that are in state ownership and not provided for land use is carried out at auctions (auctions), except in cases when a land plot or the right to lease a land plot is provided to individuals and legal entities for the operation and maintenance of buildings. (buildings, structures) belonging to them by right of ownership and (or) other property rights, including for the expansion and reconstruction of buildings (structures, structures) in the adjacent territory in accordance with architectural, urban planning and (or) construction documentation approved in accordance with the procedure established by the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities.
The list of these grounds is exhaustive, and when applying this rule, courts should verify their existence based on reliable and relevant evidence. Thus, the courts refused to satisfy the claim of "M" LLP to the mayor of the city for recognition of the decree on granting the right of temporary paid land use as illegal.
The claims are motivated by the fact that the land plot was illegally provided to an adjacent land user without competitive procedures in the absence of appropriate grounds. Local courts, agreeing with the defendant's violation of mandatory norms
According to the law on the provision of land on a competitive basis, the claim was refused, guided by the principle of protecting the right to trust.
The SCUD of the Supreme Court recognized this position of the courts as erroneous, since the administrative act affects state and public interests, was issued in the absence of reliable documents confirming the validity of the provision of land outside of competitive procedures, and the principle of protecting the right to trust in the legal relations of the parties is not applicable.
In accordance with article 133 of the CPC, the plaintiff has the right to file a claim for coercion and demand that a favorable administrative act be adopted, which was refused to him.
According to article 52 of the Land Code, ownership of buildings (structures, structures) entails, in accordance with the procedure established by law, ownership of the land plot occupied by the specified immovable property.
These rights are inseparable from each other. For example, by the decision of the SMAS dated March 28, 2022, B.'s claim to the mayor's office of the city for forcing to issue a resolution on the provision of a land plot was satisfied.
The Akimat is charged with the obligation to adopt a resolution on granting the plaintiff the right of private ownership of the land for the operation of the garage within one month from the date of entry into force of the court decision.
The claim was based on the fact that B.'s ownership of the real estate object in the form of a garage was registered in the legal cadastre, and the title document, the purchase and sale agreement, was not recognized as invalid. By virtue of article 52 of the Land Code, ownership of a garage entails ownership of the land plot occupied by it. These rights are inseparable from each other.
The Akimat confirmed that all the necessary documents for the consideration and resolution of the application for the acquisition of the right to a land plot for the operation of the garage have been provided in full. The court's decision has not been appealed to higher authorities.
Another example, by the decision of the SMAS dated February 23, 2022, the claim of A., E., and others to the Mayor's office of the city to force them to adopt a favorable administrative act was partially satisfied. The Akimat of the city is charged with the duty to adopt, taking into account the legal position of the court, a favorable administrative act in favor of the plaintiffs on the issue of granting ownership rights to land plots on which residential buildings belonging to them are located.
From the circumstances of the case, it can be seen that by the decree of the Akimat of the city dated June 8, 2017, the land plot for the design and construction of a complex of cottage-type houses was provided to "G" LLP for temporary paid land use.
On June 14, 2017, a land lease agreement was signed. On November 20, 2017, G LLP, in accordance with the procedure established by law, commissioned 16 residential buildings built on these land plots, registered ownership of the individual residential buildings built and sold them to individuals, including plaintiffs, under purchase and sale agreements.
The appellate instance reversed the decision and dismissed the claim, pointing out that the land plots were not provided to the plaintiffs for residential housing, and therefore they can only be provided on a reimbursable basis at cadastral value.
The cassation instance considered such conclusions of the court of appeal to be erroneous. The Court of appeal incorrectly applied the norms of Articles 9, 52 of the Land Code.
By the resolution of the SCAD of the Supreme Court, the decision of the SMAS was upheld. Not in all cases, on the basis of article 52 of the Land Code of the MIO, it is possible to grant the right of private ownership of a land plot. Thus, in accordance with paragraph 2 of Article 26 of the Land Code, land plots occupied by the water fund cannot be privately owned, with the exception of land plots listed in paragraph 2 of Article 133 of this Code.
In the presence of these grounds, the refusal of the MIO to grant the right of private ownership of land plots and the issuance of a negative opinion by the land commission is legitimate. In accordance with the requirements of Article 10 of the CPC, when exercising administrative discretion, the administrative body and the official ensure a fair balance of interests between the participant in the administrative procedure and the company.
An administrative act or an administrative action (inaction) must be proportionate, that is, appropriate, necessary, and proportionate. According to the principle of protecting the right to trust, enshrined in article 13 of the CPC, the trust of a participant in an administrative procedure in the activities of an administrative body or official is protected by the laws of the Republic of Kazakhstan.
For example. On the basis of the decision of the general meeting of the members of s/t "P" dated July 20, 1995, land plot No. 7 "A" was acquired. On December 3, 2020, the plaintiff filed an application addressed to the mayor of the city for granting ownership of the land plot. On December 28, 2020, by a decree of the Akimat of the city, the plaintiff was denied ownership of the land plot.
The motive is that the requested land plot, according to the plan for the implementation of urban planning regulations for the development of functional zones of the city territory, approved by the decision of the Maslikhat of November 20, 2006, and the draft detailed layout of the city territory, approved by the resolution of the Akimat of the city on January 26, 2016, is partially located within the "red lines" of the street, and a reference is also given to Article 102 of the Land Code. the code.
By the decision of the SMAS dated February 28, 2022, the resolution of the akimat was declared illegal and canceled. The court ordered the akimat of the city to eliminate the violation and adopt, taking into account the legal position of the court, an administrative act in favor of the plaintiff.
By the decision of the SCAD dated May 19, 2022, the court's decision remained unchanged. By the resolution of the SCAD of the Supreme Court of March 9, 2023, the judicial acts remained unchanged.
In satisfying the claim, the courts proceeded from the fact that the plaintiff's land plot is located within the boundaries of the city, belongs to the lands of settlements, and not to agricultural lands, and is to be used in accordance with their master plan, detailed planning and development projects, and projects for the land management of the territory.
According to the detailed planning project, the plot is located in the residential area of Zh-7, where gardening is allowed. By virtue of article 32 of the Land Code, granting land use rights means granting a person the right to use land directly by the State.
The right of land use to citizens and legal entities is granted on the basis of a decision of the local executive body of the region, the city of republican significance, the capital, the district, the city of regional significance in accordance with the competence to grant the right to a land plot.
The right of land use is a property right. The rules on the right of ownership apply to the right of land use. The right of land use may be permanent or temporary, alienable or inalienable, acquired for a fee or free of charge.
When considering claims challenging decisions of the land commission and akim's acts on the provision of agricultural land, the courts should be guided by the requirements of Article 43-1 of the Land Code, as well as the Rules for organizing and conducting a tender for granting the right to temporary paid land use (lease) for farming, agricultural production, approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated 20 December 2018, No. 518 (hereinafter referred to as Rules No. 518).
The courts should take into account that the protocol decision of the land commission can be appealed to the court in accordance with the procedure provided for by the APPC within seven working days. If the decision of the land commission is implemented, the decision of the akim is subject to challenge in court as the final administrative act within the time period established by Article 136 of the APPC.
The main mistakes made by land commissions when conducting tenders:
- lack of quorum;
- incorrect calculation of the contestants' points;
- applications that are subject to rejection as not meeting the requirements stipulated by the land legislation are allowed to participate in the tenders.
Quorum of the Commission meeting
According to paragraph 2 of Article 43 of the Land Code, the number of members of the land commission must be odd and amount to at least nine people.
At the same time, the number of representatives of public councils, non-governmental organizations in the field of the agro-industrial complex and other sectoral non-governmental organizations, the National Chamber of Entrepreneurs of the Republic of Kazakhstan, as well as local governments should be at least fifty percent of the total number of members of the land commission.
The permanent composition of the land commission and two representatives of the administrative-territorial unit in which the land plot is located are required to participate in the voting.
A meeting of the land commission is considered competent if it was attended by at least two thirds of the total number of its members.
The Chairman of the Land Commission is the deputy akim in charge of land issues.
The main task of the chairman is to lead and properly conduct the meeting of the commission, including he must put up for discussion procedural issues, including challenges, who has the right to vote and motivate the decisions taken by the commission for the minutes and AVF recordings, since the actual composition of the commission is not announced, there are unauthorized walks around the room or conversations between members commissions that are not related to the issues being resolved.
Audio and video recording of the meeting.
According to paragraph 2 of Article 43 of the Land Code, a meeting of the land commission must be recorded using audio and video recordings. The recording of the meeting of the land commission by means of audio and video recordings is carried out by the local executive body of the region, the city of republican significance, the capital, the district, the city of regional significance. The absence of audio and video recordings of the meeting is the basis for declaring the decision of the land commission invalid. For example, the SMAC considered an administrative case on the claim of Zh. to the akim of the district on recognition as illegal and cancellation of the decision of the land commission, recognition as illegal and cancellation of the resolution.
The court's decision of December 20, 2021 satisfied the claim. By the decision of the maslikhat of the district dated November 11, 2020, the personal composition of the land commission was approved: the chairman of the commission, the secretary, as well as 39 members. According to the norms of land legislation, at least 26 people must be present at the meeting of the commission in order to comply with the quorum.
At the same time, from the audio and video recordings of the meeting of the land commission, the court found that 11 people were present at the meeting. It follows from the meaning of article 43 of the Code that the absence of a quorum is a significant violation of the procedure for holding a meeting of the commission. The decision was appealed and upheld. Judicial acts have entered into legal force.
Violation of the principles of administrative procedures and administrative proceedings, depending on its nature and materiality, in accordance with the requirements of part 4 of Article 6 of the CPC, entails the cancellation of judicial acts.
For example. By the protocol of opening envelopes with bids for holding a tender for the provision of land for lease for farming and agricultural production dated October 11, 2021, the application of KH "U" was withdrawn from the tender on the basis of paragraph 12 of Article 43-1 of the Land Code.
Based on the results of the competition, conducted without taking into account the plaintiff's application, on the basis of the protocol of the land commission dated October 11, 2021, the district akim issued a resolution dated October 14, 2021, which transferred the reserve lands to agricultural land and granted the right to lease land to the winners of the competition, who were involved as interested parties. The plaintiff challenged this ruling, arguing that his application fully complied with the requirements of the law, and there was no reasoned answer in the envelope opening protocol about the reasons for withdrawing his application from the competition.
The reason for the withdrawal of KH.U.'s application from the competition was that the application did not include an obligation to conclude a contract. In this connection, the envelope with the application and the tender offer of the plaintiff was not opened by the chairman of the commission. The envelope with the tender application was opened at a court hearing, where it was established that the tender offer, obligations to conclude a contract and other documents provided for in paragraph 9 of Article 43-1 of the Land Code were in the specified envelope, stitched and numbered by the head of the CC U. The decision of the SMAS of November 4, 2021 satisfied the claim.
By the decision of the SCAD of the Supreme Court of December 22, 2022, the judicial act of the appellate instance was annulled, while the decision of the court of first instance remained in force. The Judicial Board agreed with the conclusions of the court of first instance that the application was rejected on formal grounds. By virtue of parts 1, 2 of Article 10 of the CPC, when exercising administrative discretion, the administrative body and the official ensure a fair balance of interests between the participant in the administrative procedure and the company.
At the same time, an administrative act or administrative action (inaction) must be proportionate, that is, appropriate, necessary and proportionate. When considering claims challenging the decision of the land commission made following the results of the tender, the courts should not enter into a discussion of the substance of the tender application, namely the proposed forecast investments and business plan, since these issues are referred to the competence of the commission members by the Rules. The subject of the administrative dispute is compliance with the competition procedure.
Starting from January 1, 2022, according to paragraph 23 of the Rules, persons who have lived in the district, city, village, settlement (at the location of the land plot) for at least 5 years are given an advantage in the form of assigning additional 10 points to their bids.
When applying this rule, courts should take into account as a priority the fact that the bidder resides in a locality as close as possible to the land plot, while registration of an individual entrepreneur at the location of the land plot alone is not enough.
State duty
The procedure for paying the state duty is regulated by the norms of the CPC and the Tax Code. The state duty is paid in the amount established by subitems 2, 3 of paragraph 1 of Article 610 of the Tax Code, which is 0.3 monthly calculation index for individuals, 5 monthly calculation index for legal entities.
The issue of reimbursement of court costs is resolved in accordance with the requirements of Article 122 of the CPC and Articles 109, 115, 117 of the CPC.
In accordance with Article 102 of the CPC, court costs consist of state fees and costs related to the proceedings.
By virtue of the second part of Article 122 of the CPC, when returning a claim on the grounds provided for in paragraphs 5), 6), 12), 13), 14) and 15) of the second part of Article 138 of this Code, court costs are not reimbursed.
In accordance with the second part of Article 142 of the CPC, if the plaintiff's application for withdrawal of the claim is received in full, the court explains the consequences of the withdrawal of the claim at a court hearing or a preliminary hearing.
In other cases, the judge returns the claim without calling the participants in the administrative process with a refund of the state fee.
Jurisdiction
When considering cases on disputes arising from land relations, compliance with the rules of jurisdiction, the filing of a claim by persons who have the right to claim, and the correct definition of the subject of the claim are of particular importance for resolving cases.
Jurisdiction is determined according to the rules of Articles 102 and 106 of the CPC. At the request of the plaintiff, cases referred to the jurisdiction of a specialized district and equivalent administrative court may be considered by the court at the plaintiff's place of residence, with the exception of cases under the jurisdiction of specialized district and equivalent administrative courts located within cities of republican significance and the capital, regional centers.
Jurisdiction of disputes.
For example, the SMAS received administrative claims from the Land Inspection Department to challenge the decisions of the Akim of the city, district, aul (rural) district, that is, a dispute arose between government agencies.
The Judicial Board of the cassation instance clarified the issue if the parties to the cases are two state bodies that are equivalent in status (they belong to organizations of state power that carry out on behalf of the state on the basis of the Constitution of the Republic of Kazakhstan, laws and other regulatory legal acts of the Republic of Kazakhstan on the management and regulation of socially significant public relations, control over compliance with the generally binding rules of conduct established by the state), and argue among themselves in the interests of the state, and not in the interests of individuals (legal entities) or an indefinite circle of persons, in this case such claims are not subject to consideration in administrative proceedings. There are also questions about the claims of the MIO to the authorized land management bodies to challenge the regulations submitted to them.
Taking into account that the order of the authorized body to eliminate violations of the requirements of land legislation is an administrative act and, by virtue of paragraph 3 of Article 146 of the Land Code, is mandatory, the subjects of the audit have the right to appeal it in the order of administrative proceedings.
For example: an order addressed to the akim of the district on the cancellation of the decree on the provision of land and bringing the guilty officials to justice is subject to challenge by the akim of the specified territorial unit.
At the same time, the claims of individuals and legal entities whose interests are indirectly affected by this regulation are subject to refund, since the appealed administrative act was issued against another entity.
For example: according to the claim of LLP "N" to the Department of Land Management for the recognition of illegal actions to conduct an inspection, recognition as illegal and cancellation of regulations on the elimination of violations No. 95, 96 and 97 dated July 1, 2022.
Compliance with the deadline for filing a claim in court.
Basically, the plaintiffs filed lawsuits challenging the decisions of the local executive body on granting the relevant right to land plots.
In accordance with the first part of Article 136 of the CPC, claims for challenging or coercion are filed with the court within one month from the date of delivery of the decision of the body considering the complaint based on the results of the complaint review.
If the law does not provide for a pre-trial procedure or there is no body reviewing the complaint, the claim is filed within one month from the date of delivery of the administrative act or from the moment of notification in accordance with the procedure established by this Code and the legislation of the Republic of Kazakhstan.
A person who did not participate in the administrative procedure, whose rights, freedoms and legitimate interests are affected by the administrative act, has the right to file a lawsuit within one month from the day when the person learned or could have learned about the adoption of the administrative act, but not later than one year from the date of its adoption (part 5 of Article 136 of the CPC).
Errors of the procedural law related to the restoration of the specified probation period.
For example, by the decision of the SMAS dated February 10, 2022, A.'s claim to the akimat of the district was satisfied. The resolution of July 23, 2009 on granting the right to a land plot to A LLP was canceled. By the decision of the Court of Appeal of May 19, 2022, the court's decision remained unchanged.
The courts established that by the decree of the Akimat of September 8, 2003, the plaintiff was granted the right to temporary shared land use for a period of 49 years for farming a land plot.
The courts proceeded from the fact that the right to the land plot was granted to the Partnership without the consent of the plaintiff, and therefore the decision was declared illegal.
By the decision of the SCAD of the Supreme Court of December 22, 2022, judicial acts of local courts were canceled, since the courts of first and appellate instances, when resolving the dispute on the merits, did not take into account that the plaintiff was not a participant in the administrative procedure.
The disputed resolution granted the right of land use to the Partnership. The decision was issued on July 23, 2009, and the deadline for filing a claim to challenge it expired on July 23, 2010 for a person who did not participate in the administrative procedure for its adoption, including A.
The courts, in violation of the above-mentioned provisions of the procedural law, restored the deadline for the plaintiff, which is suppressive, and considered the merits of the claim to be refunded. The courts should keep in mind that the norm of part 5 of Article 136 of the CPC is mandatory and the one-year period provided for by it is suppressive and cannot be restored. In accordance with part 8 of Article 136 of the CPC, the inability to restore the missed deadline for applying to the court is the basis for returning the claim.
For the same reasons, the judicial acts of the SMAS of October 5, 2021 and the SCAD of March 10, 2022, issued in the lawsuit of KH "A" to the akim of the rural district on recognition as illegal and cancellation of the decision on granting land use rights, were annulled in cassation.
The claim has been returned. The courts, resolving the dispute on the merits, did not take into account and did not give a proper legal assessment to the fact that the procedures for granting land use rights to the disputed land plot of farm "U" took place in 2006-2008. The administrative claim was filed on August 6, 2021. At the same time, the plaintiff KX "A" was not a participant in these procedures.
It should be noted that if the court of first instance accepts the claim for production and considers it on its merits with a decision, from the stage of appeal, taking into account the provisions of Article 126 of the CPC, it can be returned only after passing the pre-trial period.
In other cases, the case is considered by the appellate instance on the merits. However, if the time limit is restored by the court in the absence of sufficient grounds, the protection of the violated right may be denied upon the fact of abuse of the right.
Legislation
The norms of substantive law, which were guided by the courts in resolving disputes of the generalized category, include the legislative acts currently in force. The main regulatory legal acts regulating the issues of disputes of the generalized category are:
1) The Constitution of the Republic of Kazakhstan;
2) The Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code); 3
) The Land Code of the Republic of Kazakhstan (hereinafter - CC);
4) The Administrative Procedural Code (hereinafter referred to as the APPC);
5) The Civil Procedure Code of the Republic of Kazakhstan (hereinafter – CPC);
6) Business Code of the Republic of Kazakhstan dated October 29, 2015 No. 375-V;
7) Budget Code of the Republic of Kazakhstan dated December 4, 2008 No. 95-IV;
8) Environmental Code of the Republic of Kazakhstan dated January 2, 2021 No. 400 VI;
9) The Law of the Republic of Kazakhstan "On Legal Acts" dated April 6, 2016 No. 480-V;
10) The Law of the Republic of Kazakhstan "On State Property" dated March 2011 No. 413-IV;
11) The Law of the Republic of Kazakhstan "On Local Government and Self-government in the Republic of Kazakhstan";
12) 16) Regulatory resolution of the Supreme Court of the Republic of Kazakhstan "On the judicial decision" dated October 2, 2003 No. 5;
13) Rules for maintaining the State Land Cadastre in the Republic of Kazakhstan, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated December 23, 2014 No. 160;
14) Rules for the implementation of land management works for the development of a land management project, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan dated May 6, 2015 No. 379;
15) Rules for the provision of public services in the field of land relations, approved by the Order of the Minister of Agriculture of the Republic of Kazakhstan dated October 1, 2020 No. 301.
If an international treaty ratified by the Republic of Kazakhstan establishes rules other than those provided for by Law, the rules of the international treaty shall apply.
According to articles 10 and 12 of the Law "On Legal Acts," codes have greater legal force than laws; if there are contradictions in the norms of normative legal acts of different levels, the norms of a higher-level act apply.
As a general rule, provided for in Article 4 of the Civil Code, Article 43 of the Law "On Legal Acts", regulatory legal acts apply to relations that have arisen after their entry into force.
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