On the obligation to vacate non-residential premises
On January 26, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: the presiding judge Zh., judges A., A., with the participation of a representative of the plaintiff R.Zh., a representative of the defendant H.K., a representative of a third party of HBC "B" S.A., having considered in open court via mobile videoconference the civil case on the claim of JSC K D.E. on the release of non-residential premises, received at the request of the defendant for a review of the court decision of January 25, 2021 and the decision of the judicial board for civil cases of April 22, 2021,
JSC filed a lawsuit against D.E. for the obligation to vacate non-residential premises located at the address: city of N, O street, house 8, entrance 2, with a total area of 115.39 sq.m. The claim is motivated by the fact that, in accordance with the resolution of the Akimat dated May 22, 2017 No. 206-944, unfinished construction facilities with an area of 28,218.6 square meters, including non-residential premises with an area of 769 square meters, located at the above address, were transferred to the plaintiff for trust management. These premises are occupied by the defendant without title documents.
By a court decision dated January 25, 2021, the Corporation's claim was satisfied.
By the decision of the Judicial Board for Civil Cases dated April 22, 2021, the court's decision remained unchanged.
In the petition, the defendant, disagreeing with the judicial acts due to the incorrect application of the norms of substantive and procedural law, asks them to cancel and make a new decision to dismiss the claim.
After hearing the explanations of the parties, examining the submitted materials and discussing the arguments presented, the judicial board comes to the following conclusion.
In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.
Such violations were not allowed during the consideration of the case by the courts.
It follows from the case file that on August 7, 2007, defendant E.'s father entered into an equity participation agreement with LLP in the construction of an apartment building, under the terms of which he participates in the construction of an apartment building located at the address: city N, G - L – O Street, and receives, upon completion of construction, a room on the ground floor, entrance 2, with a total area of 115.39 sq.m.
Due to the LLP's lack of necessary resources and the possibility of completing construction by the decision of the specialized interdistrict Economic Court (hereinafter referred to as the SMEC) dated April 1, 2009, the unfinished construction facility – residential complex (hereinafter referred to as the residential complex) "A" was transferred to complete the construction of HBC "C" along with design estimates, executive and licensing documentation..
By the decision of the Council of Economic and Social Council of November 9, 2009, at the request of the city prosecutor, twenty-one equity participation agreements in the construction of the residential complex "A" concluded with the Partnership were terminated in the interests of HBC, funds in the amount of 101,996,276 tenge were recovered from LLP in favor of HBC. In order to repay the collected amount of money and to complete the construction of the facility, the apartments in the specified residential complex were transferred to the Housing and Communal Services.
On July 1, 2009, an agreement was signed between HBC and AKKB LLP to complete the construction of the A residential complex. On June 28, 2012, blocks 5, 6, 7, and 8 of the residential complex on O. Street were put into operation.
Earlier, the father of the defendant E. appealed to the court with a claim to declare illegal the refusal of admission to the HBC and the obligation of the HBC to accept him as a member of the HBC shareholders of the residential complex "A". By a final decision of the district court of September 15, 2010, the claim of E. and others against the Housing and Communal Services was denied.
On May 22, 2017, by resolution of the Akimat of the city No. 206, it was decided to transfer non-residential premises on the balance sheet of the State Institution "Municipal Property and Public Procurement of the City" to the trust management of JSC NC SEC.
On September 6, 2017, the trust management agreement No. 9 was concluded between these persons, and the act of acceptance and transfer transferred non-residential premises with a total area of 28,218.6 sq.m., including non-residential premises located at No. 8 O. Goroda Street.
The above indicates that the construction of the residential complex "A" was completed in accordance with the Plan of Priority Actions to ensure the stability of socio-economic development of the Republic of Kazakhstan, approved by Resolution of the Government of the Republic of Kazakhstan dated November 6, 2007 No. 1039 (hereinafter referred to as the Plan).
According to the specified Plan, the completion of housing construction facilities was assigned to authorized organizations at the expense of the local budget, subject to the subsequent provision of no more than one apartment or one individual house to the shareholder.
Thus, the Plan did not envisage the completion of construction at the expense of the local budget of non-residential premises and the subsequent transfer of such premises to persons who signed an equity participation agreement for them.
The defendant, who actually occupies the disputed non-residential premises, lacks evidence of the legality of ownership, as well as title deeds and other documents.
The case also established that the original, problematic developer of the residential complex "A" was not liquidated as a legal entity, therefore, the defendant has the right to protect his violated rights arising from the equity participation agreement by filing claims against the LLP or its convicted managers (founders).
In accordance with paragraph 3 of Article 888 of the Civil Code, the trustee has the right to claim the property entrusted to him from someone else's illegal possession, as well as to demand the elimination of violations of his right to manage, even if these violations were not related to the violation of ownership.
Since the defendant has no legal grounds for owning and using the property, and does not voluntarily vacate the disputed premises, the claims for the release of non-residential premises were reasonably satisfied.
The defendant's arguments about the application of the statute of limitations are untenable, since he has not filed such a petition with the court of first instance.
In addition, the plaintiff became aware of the illegal occupation of the disputed premises after the interdepartmental commission for the inventory of problematic communal property facilities was established by the decree of the Mayor of the city dated April 12, 2018, which revealed the illegal occupation of the disputed object by the defendant upon departure.
In the circumstances described, the conclusions of the local courts on the satisfaction of the claim are based on a proper assessment of the totality of evidence available in the case and the correct application of the substantive law governing the disputed legal relationship.
Guided by subparagraph 1) in part 2 of Article 451 of THE CPC, the judicial board DECIDED:
To restore to the defendant D.E. the procedural time limit for filing a petition for the review of judicial acts that have entered into force in cassation.
The court's decision of January 25, 2021 and the decisions of the Judicial Board for Civil cases of April 22, 2021 remain in force.
To dismiss the motion of the defendant D.E..
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