On the practice of judicial review of disputes on the right to housing abandoned by the owner Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 3.

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On the practice of judicial review of disputes on the right to housing abandoned by the owner

Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated April 20, 2006 No. 3.

In connection with the issues that arose during the consideration of cases on the claims of owners for the restoration of rights to own, use and dispose of abandoned housing, the plenary session of the Supreme Court of the Republic of Kazakhstan DECIDES:

When resolving disputes over ownership, use and disposal of housing abandoned by owners, courts should be guided by the provisions of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), and the Law of the Republic of Kazakhstan dated April 16, 1997 No. 94-I "On Housing Relations" (hereinafter referred to as the Law), and other regulatory legal acts.

The footnote. Paragraph 1 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication). 2. Excluded by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 22.12.2008 No. 26 (for the procedure of entry into force, see paragraph 2 ).

On the basis of Article 250 of the Civil Code, renunciation of the right of ownership can be expressed by declaring it or committing other actions (inaction) that definitely indicate the removal of the owner from the right of ownership without the intention to retain any rights to this dwelling.

The renunciation of the right of ownership can only come from a citizen or a legal entity that is the owner. The State and its bodies have no right to relinquish ownership of their housing, except in cases of alienation in accordance with the procedure established by law.

The footnote. Paragraph 3 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

In accordance with article 6 of the Constitution of the Republic of Kazakhstan, property obliges, and its use must simultaneously serve the public good.

According to Article 250 of the Civil Code, renunciation of ownership does not terminate the rights and obligations of the owner in relation to the dwelling. The owner bears the burden of its maintenance, the obligation to pay utility bills and taxes stipulated by law. These rights and obligations remain in place until another person acquires ownership of the dwelling.

The commission by the owner of actions indicating the renunciation of ownership rights without the intention to retain any rights to this dwelling entails the termination of ownership rights only on the basis of a court decision that has entered into legal force on the acquisition of ownership of this dwelling by another person.

The renunciation of ownership by the owner of actions to abandon the dwelling without the intention to retain ownership must be lawful, voluntary and specifically indicating that the owner refuses to own, use, dispose of the dwelling.

Such a refusal, in particular, can be expressed by submitting by the owner, with the consent of his family members and other co-owners, as well as, if necessary, bodies performing guardianship or trusteeship functions, a written application to the akim's office, on the territory of which the dwelling is located. The owner's application for renunciation of ownership of a dwelling may be withdrawn, except in cases where there is a court decision that has entered into force recognizing the dwelling as communal property or acquiring it by another person due to the statute of limitations.

The footnote. Paragraph 5 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

An abandoned (or abandoned) dwelling is a dwelling in respect of which the owner has not committed any actions indicating the intention to retain ownership. Such dwellings include empty dwellings left unattended by the owner and without fulfilling the duties of its maintenance, etc. Cases of destruction (destruction) of the dwelling are an independent basis for the termination of ownership of the dwelling by a court decision.

An apartment that does not have an owner or whose owner is unknown, or an apartment that the owner has renounced ownership of, is recognized as ownerless by the court.

Paragraph 3 of Article 242 of the Civil Code defines special rules for the acquisition of ownerless immovable property (housing) in communal ownership. According to the application of the akim's office, on the territory of which such property has been identified, it must be registered by the body carrying out state registration of immovable property. If the owner renounces the right of ownership by announcing this, the local executive body applies to the court with a request to recognize this thing as having entered communal ownership from the moment of the announcement of the refusal.

Upon the expiration of one year from the date of registration, upon the claim of the body authorized to manage communal property, the dwelling may be recognized by a court decision as ownerless and entered into communal ownership.

If the claim is filed before the expiration of the one-year period, it is not subject to consideration and is returned on the basis of subparagraph 8) of the first part of Article 152 of the CPC.

The authority to own, use and dispose of a dwelling that has not been recognized as communal property by a court decision remains with the owner who left it or passes to a third party by virtue of the statute of limitations.

The footnote. Paragraph 7 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

When considering cases on the recognition of the right of communal ownership of housing, the courts should check which housing is subject to recognition as ownerless, by whom and how it was identified, at what time it was registered as ownerless, evidence indicating that the owner of the dwelling left without the intention to retain ownership, and also involve akimats as interested parties, municipal and tax services.

If the akim disposes of a dwelling that has not been recognized as communal property by a court decision, the owner may demand the return of his dwelling or the provision of an equivalent dwelling by the akim.

When considering an owner's claim for eviction of a person living in his dwelling, the court must verify the grounds for this person's entry into the dwelling. If he moved in by order of the akim, then the court must involve him in the case with an explanation of the right to file a counterclaim against the owner for the termination of ownership on the grounds provided for by law.

If the owner's claim is satisfied, the eviction must be carried out in compliance with the requirements of the Law. The duty to provide the evicted person with another dwelling is assigned to the akimat, provided that this person was registered as a person in need of housing. The evicted person has the right to file a claim for recovery of expenses from the owner (for housing repairs, maintenance, etc.).

When considering claims for the acquisition of ownership of housing on the basis of the statute of limitations, it is necessary to take into account the totality of circumstances specified in paragraph 1 of Article 240 of the Civil Code, i.e. bona fide, open, continuous ownership of immovable property as one's own for seven years.

Good faith of ownership means that the person became the owner of the dwelling lawfully, i.e. it appeared to this owner as a result of events and actions that are directly recognized by law, other legal acts, or do not contradict them, but have not received legal registration (for example, the transfer of the dwelling by the owner without observing the legally prescribed form of the contract of sale, lease and so on).

Openness of ownership means that a person does not take any measures aimed at concealing the fact of owning a home, bears the burden of maintaining the home, pays for utilities, etc.

Continuity of ownership means that the dwelling has been in the possession of this person for seven years, without transferring ownership to third parties. Based on paragraph 7 of the Resolution of the Supreme Council of the Republic of Kazakhstan dated December 27, 1994 "On the enactment of the Civil Code of the Republic of Kazakhstan (General Part)", the time of actual ownership of housing before the enactment of this Code is counted in the statute of limitations. In accordance with paragraph 3 of Article 240 of the Civil Code, a citizen or a legal entity who refers to the limitation period of ownership may attach to his possession all the time during which the person whose legal successor he is owned this dwelling.

The footnote. Paragraph 10 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

According to paragraph 4 of Article 240 of the Civil Code, the limitation period for a dwelling held by a person from whose possession it could be claimed in accordance with Articles 260, 261, 262, 263, 265 of the Civil Code begins from the moment of taking possession of the thing.

The footnote. Paragraph 11 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

A person who believes that he has become the owner by virtue of the statute of limitations has the right to apply to the court with a statement of claim for recognition of his ownership of this dwelling. This case is subject to consideration by the court in the order of claim proceedings. The court's decision to grant the application is the basis for registration of ownership of this dwelling.

The footnote. Paragraph 12 as amended by the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated 31.03.2017 No. 2 (effective from the date of the first official publication).

The limitation period does not include the time when the home was owned on the basis of contractual obligations (lease, storage, gratuitous use, etc.) or the home was secured by the right of economic management or operational management.

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

The Supreme Court

Republic of Kazakhstan

Judge

The Supreme Court

Republic of Kazakhstan,

The secretariat of the plenary

meetings

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