On the recognition of illegal and cancellation of the decision on the legalization of real estate

No. 6001-23-00-6ap/1569 dated 12/20/2023

Plaintiff: N.Y.

The defendant: akim of the city

The subject of the dispute:   on the recognition of illegal and cancellation of the decision on the legalization of real estate No. 7397 dated August 17, 2007

Review of the plaintiff's cassation complaint PLOT:

By the decision of the commission for the legalization of real estate located on the territory of the city and adjacent settlements, dated August 17, 2007, No. 7397 of the State Institution "Department of Housing and Communal Services, Passenger Transport and Highways" legalized an apartment located at the address: A. region, city of S., 9th microdistrict, 17 house, apartment No. 303. Subsequently, the right to the property is registered with the registration authority.

On July 28, 2022, the State Institution "Department of Housing and Communal Services, Passenger Transport, Highways and Housing Inspection" responded to the plaintiff's appeal with the attachment of the contested decision on legalization.

On August 25, 2022, the plaintiff filed a lawsuit challenging the decision to legalize the apartment.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision of the court of first instance is overturned, the administrative claim is returned.

Cassation: judicial acts are cancelled. The case has been sent for a new hearing to the court of appeal according to the rules of the court of first instance.

Conclusions: in rejecting the claim, the court of first instance concluded that the legalization of the disputed apartment by the state body does not violate the rights and legitimate interests of the plaintiff, since the legalization of the apartment by the state body does not prevent the plaintiff from exercising his housing rights, including the privatization of the apartment.

Disagreeing with the above-mentioned conclusions of the court of first instance, the appellate instance overturned the court's decision, returning the claim due to the fact that the plaintiff is not a participant in the administrative procedure for the legalization of the disputed apartment, as the plaintiff disputes the administrative act issued and committed in the interests of the State Institution "Housing and Communal Services Department".

At the same time, the plaintiff missed the deadline for filing a lawsuit in court, since he filed this lawsuit with the court only on August 25, 2022, that is, more than 15 years after the contested decision on the legalization of real estate was made.

At the same time, the board considers these conclusions of the local courts to be premature, based on a misinterpretation of the substantive law to be applied, and an incomplete clarification of the circumstances of the case that are important for the proper resolution of the dispute.

As mentioned above, by the decision of the commission for the legalization of real estate dated August 17, 2007 No. 7397, a decision was made to legalize residential premises, which was subsequently registered with the registration authority for the State Institution "Department of Housing-

public utilities, passenger transport and highways". The plaintiff became aware of the disputed decision on legalization in 2022, which was not disputed by the defendant.

It was also established that the plaintiff lives in the disputed apartment on the basis of a lease agreement for residential premises in state and public housing buildings dated April 3, 1989.

In accordance with paragraph 1 of Article 2 of the Law "On Amnesty in connection with the Legalization of Property", this Law applies to subjects of legalization who legalize and legalize property owned and received before the start of the legalization period, located both on the territory of the Republic of Kazakhstan and abroad, including those registered to an improper person, except for with the exception of the property specified in Article 3 of this Law.

Thus, the subjects of legalization are those who actually use and own property.

However, the local courts did not clarify the circumstances regarding the plaintiff's actual residence in the disputed apartment at the time of its legalization, did not study the exact date when the plaintiff became aware of the legalization of the apartment, the defendant did not examine the object of legalization itself on the question of the presence or absence of other persons living in it before legalization.

Also, the lower courts did not carry out a thorough collection of information about the subject of legalization, and the issue of recognizing the disputed apartment as ownerless was not clarified.

Thus, the board concludes that the local courts have not taken sufficient measures to comprehensively, fully and objectively clarify the circumstances relevant to the case, and the norms of substantive and procedural law have been incorrectly applied.

These violations are significant, which leads to the cancellation of the contested judicial acts with the referral of the case for a new hearing to the court of appeal according to the rules of the court of first instance, in a different composition of the court.

Upon a new hearing, the court should eliminate the above-mentioned shortcomings, carefully examine the evidence and arguments presented by the parties, and resolve the dispute in accordance with the applicable substantive and procedural law.

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