On the recognition of illegal actions to refuse to register an act of acceptance of a built facility into operation by the owner himself, on the assignment of the obligation to take an action to register an act of acceptance
No. 6001-24-00-6ap/1810 dated April 08, 2025
Plaintiff: E.J.
Defendants: State Institution "Department of Architecture, Urban Planning and Land Relations", NAO "State Corporation
"Government for citizens"
The subject of the dispute: on the recognition of illegal actions to refuse to register the acceptance certificate of a built facility for operation by the owner himself, on the assignment of the obligation to perform an action to register the acceptance certificate;
on the assignment of the obligation to perform an action on registration in the legal cadastre of the registered act of acceptance of the constructed facility into operation by the owner independently;
Review of the plaintiff's cassation complaint PLOT:
The plaintiff, on the basis of a purchase and sale agreement dated March 24, 2022, purchased from C LLP a parking space with a total area of 13.7 sq.m., in an apartment building.
In the period from July to August 2023, the plaintiff carried out the re-equipment (redevelopment) of the parking space, with the construction of a second level of metal structures in it.
On August 22, 2023, the plaintiff and the contractor "K" LLP, which performed the work, signed an act of acceptance of the facility into operation by the owner independently.
According to the Plan and the annex to the acceptance certificate, it follows that the area of the parking space itself as a result of the re-measurement and redevelopment (construction of the second level), the parking space area was 19.3
sq.m., the area of the second level was 8.9 sq.m., as a result, the total usable area was 28.2 sq.m.
On January 16, 2024, the plaintiff applied for registration of the relevant changes to the Corporation, which sent the certificate of acceptance of the facility to the Management for verification of the customer's compliance with the procedures defined by the rules for the organization of development and the passage of licensing procedures, and the accounting of the acceptance certificate.
On January 18, 2024, the Department of Architecture provided the Corporation with a response stating that it was impossible to register the acceptance certificate of the facility due to non-compliance with legal requirements, with reference to the fact that, according to paragraph 1-1 of Article 40 of the Law of the Republic of Kazakhstan "On Housing Relations", it is not allowed to change the constructive part and functional purpose of the parking space.
On January 18, 2024, the Corporation drew up an act stating that it was impossible to execute the plaintiff's application due to the Management failure.
The plaintiff, exercising the right provided for by law, appealed to the court with the above-mentioned administrative claim, arguing that the redevelopment (re-equipment) of the parking space was not related to the modification of load-bearing and (or) enclosing structures, and therefore, the passage of licensing procedures, including the development of design estimates, is not required. I considered that the functional purpose of the parking space does not change as a result of the construction of the second level, and therefore the refusal of the Architecture Department to register the acceptance certificate of the facility on its own is not legitimate.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case are upheld.
Conclusions: in accordance with paragraph 2 of Article 75-1 of the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter referred to as the Law on Architectural Activities), local executive bodies performing functions in the field of architecture and urban planning, before the expiration of one working day from the date of receipt of documents from a State corporation
"Government for Citizens" checks on the customer's compliance with the procedures defined by the rules for the organization of development and the passage of licensing procedures, and records the act of commissioning through the information system of the state urban cadastre.
Based on the results of the reconciliation, in case of non-compliance of the construction site with the requirements of the rules for the organization of construction and passage
Within one working day after receiving the documents from the State Corporation, the state architectural and construction control authorities and the registration authority are informed in writing about this.
Article 2 of the Law "On Housing Relations" (hereinafter referred to as the Law) defines the concepts of parking and parking space.
Parking of an apartment building (hereinafter referred to as parking) is an uninhabited space in a specially designated part of an apartment building or attached to an apartment building in accordance with a construction project, intended for parking vehicles, consisting of parking spaces.
Parking space – a place for parking a vehicle in a parking lot (garage, if available), which is not an uninhabited space and is individually (separately) owned.
In accordance with paragraph 1-1 of Article 40 of the Law, it is prohibited to change the constructive part and functional purpose of the parking lot, which is part of the common property of the condominium facility, or the parking space or storage room.
According to paragraph 17 of the Rules for the Organization of development and Passage of Licensing procedures in the field of construction, approved by the Order of the Minister of National Economy of the Republic of Kazakhstan No. 750 dated November 30, 2015 (hereinafter referred to as the Rules), when designing residential and public buildings, underground space for parking lots, garages and engineering equipment structures is used taking into account the engineering and geological conditions of the construction site in in accordance with construction, environmental, sanitary and fire protection requirements.
According to paragraph 23 of the Rules, the implementation of projects for the reconstruction (redevelopment, re-equipment) of premises (individual parts) of existing buildings and structures related to the modification of load-bearing and enclosing (external) structures, engineering systems and equipment is carried out in the following stages:
obtaining raw materials for reconstruction (redevelopment, re-equipment) of premises (individual parts) of existing buildings;
design and expertise of projects for reconstruction (redevelopment, re-equipment);
notification of the bodies carrying out state architectural and construction control and supervision on the commencement of construction and installation works and the implementation of construction and installation works;
acceptance and commissioning of the constructed facility.
According to paragraph 23 of the Rules, the source materials include:
1) the decision of the MIO on the reconstruction (redevelopment, re-equipment) of premises (individual parts) of existing buildings and structures,
related to changes in load-bearing and enclosing (external) structures, engineering systems and equipment; 2) architectural and planning assignment; 3) technical specifications (when the applicant submits a questionnaire for technical specifications for connection to engineering and utility sources); 4) schemes of routes of external engineering networks (when the applicant submits a questionnaire).
On the erected second level of the parking space, the plaintiff provided and located a separate room with an area of 8.9 square meters.m, intended for recreation and leisure of the plaintiff, which is incompatible with the functional purpose and concept of a parking space.
Thus, the structural part has undergone significant changes, since the original appearance and content of the parking space have significantly changed, and a second level with a different purpose has appeared, which is essentially a small non-residential building. Additionally, automatic closing doors are provided for the parking space, that is, the plaintiff has isolated it from others (garage).
Consequently, the plaintiff changed the constructive part and partially changed the functional purpose of the parking space, and therefore, the procedure for independent commissioning of the facility is not allowed in this case.
During the conversion (redevelopment) of the parking space, the plaintiff did not take into account the engineering and geological conditions of the construction site in accordance with construction, environmental, sanitary and fire safety requirements, and the stages of paragraph 23 of the Rules were not observed. In this regard, the judicial board considered that the conclusions of the local courts were legitimate and justified, and the plaintiff's arguments about the inconsistency of the conclusions of the local courts with the circumstances of the case were untenable.
Since the circumstances of the case were established correctly by the local courts, and the norms of substantive and procedural law were applied correctly, the collegium did not find any grounds for canceling or changing judicial acts.
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