On the recognition of illegal actions to refuse approval of the projected land plot
No. 6001-23-00-6ap/1522 (2) dated 11/16/2023
Plaintiff: G.A.
Defendant: NAO "Government for Citizens State Corporation"
Interested parties: State Institution "Committee on Land Resources Management of the Ministry of Agriculture of the Republic of Kazakhstan" (hereinafter referred to as the Committee), State Institution "Department of Land Relations" (hereinafter referred to as the Department), K.E., individual entrepreneur I.I., LLP "BZH"
The subject of the dispute: on the recognition of illegal actions to refuse to coordinate the projected land plot with the graphical data of the AIS GZK, on the obligation to coordinate the graphical part in the ordering of the boundaries of the land plot, on the obligation to enter geodata on the ordering and establishment of boundaries into the AIS GZK, and to coordinate the mark of the cadastral group and summary statements of the coordinates of the land plot
Review of the cassation complaints of the defendant and the interested party
The faces of the PLOT:
The initial registration of the land plot at 5 S. Street in the city of Skadastrov village No. 14 (hereinafter referred to as Zemuchastok 5) was made on February 05, 1959 on the basis of an agreement on the provision of a land plot for the construction of an individual residential building on the right of personal ownership dated September 16, 1957 No. 1071/57, and an act on the allotment of the land plot in in kind dated September 16, 1957, the copyright holder was A.m.
Subsequently, Zemuchastok 5 was registered: on March 30, 1959, for K.N. on the basis of a purchase and sale agreement dated March 05, 1959; on August 26, 1960, for Sh.Ya. on the basis of a purchase and sale agreement dated August 26, 1960; on July 06, 1964, for H.I. on the basis of a purchase and sale agreement dated On July 04, 1964 and May 24, 1989 on the basis of the decision of the Industrial District Council of People's Deputies of the Executive Committee of May 16, 1989 on the legalization of residential buildings for an individual house; on May 26, 1989 for H.O. on the basis of a certificate of inheritance under the law of May 26, 1989; On September 09, 1997, for H.T. on the basis of a certificate of inheritance under the law of September 09, 1997; on December 29, 1998, for "S" LLP on the basis of a purchase and sale agreement dated November 19, 1997;
On January 14, 1999, an act of ownership of a land plot was issued to Zemuchastok 5 on the basis of a decision of the mayor of the city dated January 05, 1999.;
On January 15, 1999, Zemuchastok 5 with buildings was registered for G.A. on the basis of the act of acceptance and transfer of property and property rights dated October 15, 1998, the act of ownership of the land plot dated January 14, 1999, the decision of the akim of the city dated January 05, 1999.
The initial registration of the land plot along S. 3 Street in the city of P. with cadastral number 14 (hereinafter referred to as Zemuchastok 3) was carried out on May 17, 1957 on the basis of an agreement on the provision of a land plot for the construction of an individual residential building on the right of personal ownership dated May 17, 1957 No. 451/57, and an act on the allotment of the land plot in in kind dated May 15, 1957, the copyright holder was B.V.
Subsequently, Zemuchastok 3 was registered: on May 21, 1979, for B.O. on the basis of a certificate of ownership dated April 25, 1979; on July 25, 1979, for D.N. on the basis of a purchase and sale agreement dated July 25, 1979; on June 14, 1980, for M.A. on the basis of a purchase and sale agreement dated On June 14, 1979 and October 17, 1988, based on the decision of the Industrial District Council of People's Deputies of the Executive Committee of October 04, 1988 on the legalization of residential buildings for an individual residential building; on October 13, 2008, for S.A., Z.L. on the basis of the certificate of inheritance under the will dated September 19, 2008; August 17, 2011 for Z.L. on the basis of the certificate of inheritance under the law dated August 16, 2011;
On August 24, 2011, an act on the right of private ownership of a land plot was issued for Land Plot 3;
On July 25, 2012, it was registered for K.E. on the basis of a purchase and sale agreement dated July 25, 2012; on June 14, 2017, the act of acceptance of the built facility into operation by the owner independently dated June 13, 2017 was registered.;
On December 12, 2017, an act on the right of private ownership of a land plot was issued for Land Plot 3.
On September 02, 2022, the plaintiff applied to the NAO with an application for approval of the projected Land Plot 5, graphical data of the automated information system of the State Land Cadastre (hereinafter referred to as AIS GZK), with an attachment developed by IP I.I. land management project.
On September 09, 2022, the NAO drew up an act of reconciliation of the list of coordinates of the projected Excavation Site 5, which indicates the identified inconsistency of Excavation Site 5 with AIS GZK data, namely, an overlay on Excavation Site 3. Received by the plaintiff on September 26, 2022.
On the same day, September 26, 2022, the plaintiff filed a complaint with the NAO, to which a response was received on October 14, 2022.
Disagreeing with the actions of the NAO in refusing to approve the projected Land Plot 5 to the graphical data of the AIS GZK, the plaintiff filed an administrative claim and clarifications to it with the above requirements. The plaintiff's claims are motivated by the fact that according to the schematic drawing of the boundaries dated September 16, 1957, the measurements of Land Plot 5 were 20.0 * 25 sq.m. According to the act of ownership of the land plot dated January 14, 1999, Land Plot 5 was changed from 19.65 to 25.45, the plaintiff became aware of this act in 2019. From the information of the state archive, there are no documents on the reduction of Land Plot 5. It follows from the response of the State Cadastre that the coordinates of the location of Excavation Site 5 and the buildings on them do not correspond to the actual location of Excavation Site 5 and buildings, Excavation sites 3 and 5 with buildings are shifted to the south. As a result of incorrect coordinates being entered into the AIS of the GPC, the northern part of the plaintiff's buildings turned out to be on Land Plot 3, as well as the buildings of Slavgorodskaya 7 on Land Plot 5. According to the land cadastre case (hereinafter referred to as the WKD), no project for the provision and arrangement of borders was carried out at Zemuchastok 3, and coordination with adjacent plots was not carried out. The plaintiff's apartment building and buildings were built in 1957 and put into operation on June 21, 1989. December 12, 2017 K.E.. an act of ownership for Plot 3 was received without a survey of Plot 3, a summary statement of coordinates, a land management project to streamline land use and materials for establishing the boundaries of Plot 3 on the ground, as indicated by a representative of the Committee during an inspection on December 27, 2021, and there is no agreement with the owners of adjacent land, including Plot 5. Due to the failure to eliminate the violations identified by the Committee, the NAO refused to mark the cadastral group for clarifying and establishing the boundaries of Land Plot 5, drawn up by IP I.I. By the decision of the City Court of April 25, 2022, K.E.'s claim for the demolition of an apartment building and its outbuildings along S. 5 Street was denied..
Judicial acts:
1st instance: the claim is satisfied:
- the actions of the NAO "State Corporation" have been recognized as illegal
"Government for citizens", upon refusal to approve the projected land plot located at the address: city of P., S. 5 street, owned by G.A., graphical data of the automated information system of the state land cadastre.
The NAO "Government for Citizens State Corporation" is charged with the duty:
1. to coordinate the graphic part in the ordering of borders
a land plot located at the address: city of P., S. 5 street, owned by G.A.;
2. enter into the automated information system of the state land cadastre geodata on the ordering and establishment of the boundaries of the land plot and coordinate the mark of the cadastral group on the plans of the boundaries of the land plot and the consolidated lists of coordinates of the land plot located at the address: city P., street S. 5, owned by G.A.;
3. ensure that G.A.'s application for approval of the projected land plot is reviewed using graphical data from the automated information system of the state land cadastre, taking into account the legal position of the court set out in the reasoning part of this court decision, and execute this court decision within one month from the date of its entry into force, which he must notify the court about.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions: administrative procedures and administrative proceedings are conducted on the basis of the principles set out in Chapter 2 of the APPC (legality, fairness, proportionality).
By virtue of paragraph 8 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 6 "On certain issues of the application of land legislation by Courts" (hereinafter referred to as the Regulatory Resolution), when resolving a dispute on violation of the boundaries of adjacent land plots, courts should take into account the requirements established by Article 43 of the Land Code; verify the grounds for the emergence of rights to each of the parties has land, if necessary, to comply with the procedure for allotment of land, as well as title documents, and a chronology of registration of rights to immovable property.
According to paragraph 10 of Article 43 of the Land Code, for the use and disposal of a land plot, it is necessary to establish its boundaries in kind (on the ground) and draw up title documents.
Courts should keep in mind that the executive body may change or reverse its decision to grant the right to a land plot before fulfilling the requirements specified in it, for example, before a person receives a state act on the land plot. From the moment of receipt of these documents, the land user is granted the right to a land plot in the form of private ownership, permanent or temporary land use, therefore, a dispute about the right can only be resolved in court.
If there are equivalent rights to the same land plot or part of the plot, the courts should proceed from the priority of previously acquired rights to immovable property, established by the date of the right in accordance with civil law.
In a dispute between the owners of neighboring plots that are not their original owners, if the boundaries of land plots are established, the courts should proceed from the historically established boundaries of the plots; the dispute between the owners of two land plots is not
should entail a violation of the rights of others; court decisions should not contribute to the emergence of new legal disputes between owners of other land plots.
If the court finds that a dispute over the right to a land plot arose as a result of incorrect establishment of the boundaries of the land plot on the ground or improper registration of the identification document for the land plot, which led to the imposition of the boundaries of the land plot, then such a dispute should be considered ... by challenging the decision of the local executive body.
According to Part 2 of Article 76 of the CPC, the circumstances established by a court decision or decision that entered into force in a previously considered civil case are binding on the court.
The court of first instance, guided by the above-mentioned norms, reasonably satisfied the claim of G.A., recognized the contested actions of the defendant as unlawful and imposed the obligation on the defendant to take appropriate actions to streamline and establish the boundaries of the disputed land plot 5, since it was reliably established that the earlier and effective decision of the City Court of April 25, 2022 K.E.'s claim against G.A. was dismissed. on the demolition of buildings belonging to the plaintiff, that is, the dispute between the adjacent land users of the disputed land plots 3 and 5 has been resolved.
Consequently, the court of first instance legitimately proceeded from the provision of paragraph 8 of the Regulatory Resolution, indicating that the plaintiff has a priority right to a part of the land plot, based on the historically established boundaries of land plots 3 and 5, as well as the buildings/real estate objects on land plot 5, due to their primary registration. At the same time, according to the land survey acts, the actual area of land plot 3 is larger (0.0497ha) than indicated in the acts on the right of private ownership - 0.0496ha, while the established actual area of land plot 5 is smaller (0.0493ha) than indicated in the act on the right of private ownership - 0.0500ha.
In this regard, the court correctly recognized the contested actions of the NAO as unlawful and imposed the obligation on the defendant to take measures to streamline and establish the boundaries of the land plot 5 and ensure consideration of the plaintiff's application for approval of the projected land plot 5 according to the graphic data of the AIS GPC.
The appellate judicial board reasonably agreed with the above-mentioned conclusions of the court of first instance, which upheld the court's decision.
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