On the recognition of illegal actions to refuse to conclude a contract of sale
No. 6001-23-00-6ap/1192 dated 05.12.2023
Plaintiff: U.T.
Defendant: KSU "Municipal Infrastructure Development Department" (hereinafter referred to as the Department)
Interested parties: Akimat of the city, Ministry of Industry and Infrastructure Development, JSC Housing Construction Savings Bank Otbasy Bank
The subject of the dispute: on the recognition of illegal actions to refuse to conclude a contract of sale, on the imposition of the obligation to conclude a contract of sale
Review of the defendant's cassation complaint PLOT:
U.T. is a participant in the pilot project "Shanyrak" according to the State program "Nurly Zher", which is in line for improving housing conditions in accordance with the Law "On Housing Relations".
Since April 21, 2021, U.T. has been on the waiting list for housing from the public housing fund in the category of "single-parent families".
On May 13, 2021, U.T. was put on the housing waiting list, priority No. 13712.
On February 15, 2022, the plaintiff received a notice of qualification from Otbasy Bank JSC, the validity period of the positive decision of the Authorized Body on the loan application is 6 (six) months from the date of the decision.
Based on a letter from Otbasy Bank JSC dated February 18, 2022, a list was sent to the Management for concluding a purchase and sale agreement within the framework of the Shanyrak pilot project.
On April 15, 2022, documents were submitted to the Office for concluding a purchase and sale agreement and obtaining a technical passport for evaluating the apartment, as part of the pilot project "Shanyrak" (hereinafter referred to as the apartment).
On June 20, 2022, the plaintiff received a response from the Department No. ZHT-U-2691, which stated that within the framework of the Nurly Zher State Program for Housing and Communal Development for 2020 – 2025, approved by the decree of the Government of the Republic of Kazakhstan dated December 31, 2019
No. 1054 (hereinafter referred to as the Nurly Zher program), it is not allowed for a participant to purchase more than 1 (one) unit of housing, as she previously received housing under the state program.
The plaintiff, disagreeing with the defendant's refusal, appealed to the court with the above claim.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the court's decision remains unchanged.
Cassation: judicial acts are left unchanged.
Conclusions: The courts, satisfying the plaintiff's claims, proceeded from the following.
U.T. previously purchased a studio apartment under a purchase and sale agreement dated September 2, 2009 for a family of three, with each of them accounting for 9.8 sq.m. of usable area. According to the sanitary and epidemiological conclusion, the apartment was found not to meet sanitary requirements.
In accordance with paragraph 2 of section 5.1 of the Nurly Zher program, citizens who are registered as needing housing in accordance with the Law of the Republic of Kazakhstan can participate in the Program.
"On housing relations", by category: single-parent families.
The main requirements for participation are: 1) citizenship of the Republic of Kazakhstan; 2) income from labor and (or) business activities (excluding pension contributions, individual income tax and other mandatory deductions) for the last 6 (six) months, not exceeding 3.1 times the subsistence minimum for each family member, approved by the law on the republican budget for the relevant period. financial year; 3) expiration of a 3-year period from the date of divorce (for single-parent families); 4) confirmation of solvency; 5) confirmation by the local executive body of the registration of a person in need of housing and the status of a person in need of housing according to the specified categories of participants in accordance with the Law of the Republic of Kazakhstan "On Housing Relations".
The plaintiff meets all the above requirements of the Nurly Zher program.
The Nurly Zher program does not require that citizens who have previously participated in other government programs cannot purchase housing under the program.
All doubts, contradictions and ambiguities in government programs should be interpreted in favor of the participant in the administrative procedure.
These and other arguments of the courts are set out in detail in judicial acts.
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