On the recognition of ownership of an unauthorized building

Jurisdiction. Claims for recognition of ownership of an unauthorized building are subject to the rule of exclusive jurisdiction. Depending on the parties to the civil case, claims are considered by district (city) courts if one of the parties is a citizen. If the parties to the case are individuals engaged in individual business activities without forming a legal entity and legal entities, the claim is subject to the jurisdiction of specialized economic courts.

Definition of the legal relations of the parties and the law to be followed. The legislative definition of unauthorized construction is given in Article 244 of the Civil Code, according to which unauthorized construction is an apartment building, other structure, structure or other immovable property created on land not formed into land plots owned by the state, on a land plot that does not belong to the person who carried out the construction, as well as created without obtaining permits for it, required in accordance with the land legislation of the Republic of Kazakhstan, the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities in the Republic of Kazakhstan and other legislation of the Republic of Kazakhstan.

An unauthorized building is subject to demolition by the person who carried it out or at his expense, but under certain conditions the legislator allows the recognition of ownership rights to it. These conditions are defined in paragraphs 3 and 4 of Article 244 of the Civil Code.

It follows from the content of paragraph 3 of Article 244 of the Civil Code that:

The right of ownership to an unauthorized building may be recognized by a court for the person who carried out the construction on a land plot that does not belong to him, provided that this plot is provided to this person in accordance with the established procedure for the placement of the erected building. Consequently, in accordance with this norm, paragraph 1 of Article 244 of the Civil Code and the provisions of the Land Code, the granting of property rights to land plots (ownership rights, land use rights) is carried out by a local executive body from lands owned by the state and not formed into land plots. In this regard, the right of ownership to an unauthorized building may be recognized by the developer, provided that the land plot from state ownership is provided to him in accordance with the procedure established by law.

When an unauthorized building is erected on a land plot owned by another person, but not by the state, the right to build may be recognized by the developer with the consent of the owner of the land plot with the payment of compensation to the latter.

The right of ownership to an unauthorized building may be recognized by a court not for the person who carried out the unauthorized construction, but for the person in whose lawful use the land plot where the construction was carried out is located. In this case, the person who has recognized ownership of the building shall reimburse the person who carried it out for the construction costs in the amount determined by the court.

By virtue of paragraph 4 of Article 244 of the Civil Code, taking into account socio-economic expediency, an unauthorized building erected by a person on land plots (land not formed into land plots) owned by the state and not in land use is transferred to communal ownership with reimbursement to the developer of construction costs in the amount determined by the court.

In case of satisfaction of the claim for recognition of ownership of an unauthorized building, the judicial act that has entered into legal force is the basis for registration of ownership rights with the registering authority. At the same time, the operative part of the decision should contain information that allows identifying the object (the name of the object, its purpose, address, area, etc.).

Often, claims for recognition of ownership of an unauthorized extension are filed in relation to reconstructed, redeveloped or converted facilities or to simplify registration for a newly created facility.

When considering such claims, the courts should keep in mind that the owner or legal owner of a land plot has the right to erect a building on it in compliance with licensing procedures and is obliged to comply with the established procedure for putting the building into operation. If the relevant authorized body prevents the commissioning of the building, then the person who erected the building has the right to protect his rights in accordance with the procedure provided for in Chapter 29 of the CPC.

Persons involved in the case. The plaintiff is the person who carried out the unauthorized construction. The defendant is 1) the akim of the relevant administrative-territorial unit. In accordance with articles 17, 18, and 19 of the Land Code, the provision of land plots for private ownership and land use falls within the competence of the district (except for urban areas) executive body, the local executive body of the city of regional significance, akims of the city of regional significance, settlement, aul (village), aul (rural) districts; 2) a person, who is the owner or legal owner of the land plot. Third parties on the defendant's side without independent claims are authorized bodies of architecture, fire service, sanitary inspection and other relevant authorities, owners or owners of adjacent land plots.

Facts to be established and proved. Evidence and proof. The ownership of the land plot under unauthorized construction is subject to determination. The land plot must not belong by right of ownership or land use to the person who carried out the unauthorized construction.

It is necessary to clarify the position of the local executive body on the subsequent provision of a land plot during the construction of an unauthorized building on a land plot owned by the state, to clarify the position of the owner (legal land user) of the land plot on the claim of the developer for recognition of ownership of the building.

Perhaps, when preparing a case for the trial of a dispute, it will be necessary to demand evidence of bringing to administrative responsibility or to find out how the violations have affected the layout, construction and landscaping of the street, district, and the convenience of maintaining adjacent land.

The mandatory conditions for recognizing ownership of an unauthorized building are:

1) compliance of the building with the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities, as well as other mandatory (fire, sanitary) requirements;

2) respect for the rights and legally protected interests of other persons, and the absence of a threat to the life and health of citizens.

It is necessary to provide evidence that the real estate is newly created and complies with the requirements of the legislation on architectural, urban planning and construction activities, as well as evidence of compliance with the rights and legally protected interests of others, the safety of construction for the life and health of citizens.

Compliance with the requirements of sanitary, fire, and environmental legislation during the construction of the disputed building is proved. In order to establish the presence (absence) of deviations from urban planning and building regulations or other norms and rules during the construction of unauthorized buildings, the court has the right to appoint judicial examinations.

A building erected without a permit on its land plot is also unauthorized, according to the definition given in the Law "On Architectural, Urban Planning and Construction Activities in the Republic of Kazakhstan" (hereinafter referred to as the Law on Architectural Activities).

However, ownership of it cannot be recognized, since it can be put into operation. If the building is located in a seismic hazard zone, a decision of the authorized body is required to put it into operation. If the authorized body unreasonably hinders this, then it is necessary to appeal the refusal or inaction.

Judicial practice

In cases where the plaintiffs are legal entities, citizens engaged in entrepreneurial activities without forming a legal entity, using the building for entrepreneurial activities, claims are filed with specialized interdistrict economic courts. The courts need to take into account the provisions of paragraph 2 of the regulatory decree of the Supreme Court "On certain issues of dispute resolution related to the protection of ownership of housing," according to which a claim for ownership of housing is filed with the court at its location. A claim filed in violation of the rules of jurisdiction is returned, and one accepted for production is sent according to the jurisdiction. According to paragraph 11 of the said regulatory decree of the Supreme Court, a claim for recognition of ownership of an unauthorized dwelling is brought against a local executive body and is considered by the court in the order of claim proceedings. Subparagraph 4) of Article 1 of the Law "On Local and State Administration and Self–Government in the Republic of Kazakhstan" defines that a local executive body (akimat) is a collegial executive body headed by the akim of a region (city of republican significance and capital), district (city of regional significance), exercising local public administration and self-government within its competence. on the relevant territory. According to articles 26, 29, 30, 33 of the Law "On Local Public Administration in the Republic of Kazakhstan" dated January 23, 2001, the akim represents the interests of the relevant administrative-territorial unit in relations with citizens, legal entities and government agencies. Therefore, the akim of the relevant territorial unit must be a party to the case.

When filing claims for recognition of ownership of an unauthorized building by plaintiffs, a state fee is paid as for property disputes in accordance with subparagraph 1) of paragraph 1 of Article 535 of the Tax Code in the amount of 1% by individuals and 3% by legal entities of the market price of the building on the day of the appeal to the court.

Some courts accept applications for establishing the legal fact of ownership of an unauthorized building. The courts, considering such applications in a special procedure without involving interested state bodies, unlawfully appropriate the powers of akimats, departments of land relations, architecture and urban planning, etc. For example, the court's decision satisfied A.'s application for establishing the legal fact of ownership of an unauthorized building. The court established the legal fact of ownership of the unauthorized building – the garage – for the plaintiff and ordered the Department of Justice of the city of Temirtau to register ownership of the garage for the plaintiff. In resolving the issue of registration of the plaintiff's property right, the court, in violation of subparagraph 3) of the first part of Article 366 of the CPC, resolved the issue of the rights and obligations of a person – the Department of Justice, who was not involved in the case.

According to subparagraph 3) of paragraph 4 of the Rules for the establishment of powers, duties, as well as the mandatory composition of the acceptance and working commissions for the acceptance of constructed facilities in the Republic of Kazakhstan, approved by Government Decree dated October 15, 2001 "Some issues of the implementation of the Law "On Architectural, Urban Planning and construction activities in the Republic of Kazakhstan" – When facilities (complexes) are put into operation, the acceptance commission includes: representatives of local authorities (services) of architecture and urban planning, the state fire service and the state sanitary and epidemiological supervision, and other interested state supervision authorities, depending on the profile (purpose) of the facility (complex) being put into operation.

If the court recognizes the ownership of an unauthorized building for a person in whose lawful use the land plot where the construction was carried out is located, this person shall reimburse the person who carried it out for the construction costs in the amount determined by the court.

According to paragraph 12 of the regulatory decree of the Supreme Court "On certain issues of dispute resolution related to the protection of home Ownership", when considering a claim for recognition of ownership of a residential building arbitrarily erected on a plot of land not allocated for these purposes, it can be satisfied only on condition that this plot is provided to the plaintiff in accordance with in accordance with the procedure established by law.

In accordance with articles 17, 18, and 19 of the Land Code, the provision of land plots for private ownership and land use falls within the competence of the district (except for urban areas) executive body, the local executive body of the city of regional significance, akims of the city of district significance, settlement, aul (village), and aul (rural) districts. Consequently, the demands for recognition of ownership of an unauthorized building on the basis of letters from the departments of land relations, architecture and construction, etc., who are not authorized to resolve this issue, are unfounded.

There have been cases when courts have considered claims for the legalization of unauthorized construction by persons who erected an unauthorized building without permits on a land plot that is owned or used by them.

Meanwhile, the legal owner of the land plot has the right to erect a building in compliance with licensing procedures and is obliged to comply with the established procedure for putting the building into operation. If the relevant authorized body prevents the commissioning of the building, then the person who erected the building has the right to protect his rights in accordance with the procedure provided for in Chapter 27 of the CPC.

The court's decision satisfied N.'s claim for recognition of ownership of the disputed building. The court found that on the basis of the purchase and sale agreement, N. is the owner of the non-residential premises of cafe "Ch", the ownership right was registered with the registration authority on December 11, 2006. It follows from the state act that N. was granted the right of temporary land use for a land plot with the intended purpose of operating a cafe. Satisfying the requirements of N., the court proceeded from the fact that, according to the conclusion on conducting a technical study of the disputed structure, no violations of the norms of the SNiP RK had been established. By a decision of the Supervisory Judicial Board for Civil and Administrative Cases of the Supreme Court, the court's decision was overturned with the adoption of a new decision in the case to dismiss the claim.

The Board indicated that if N. erected the disputed structure on the land plot of which he is the owner, in compliance with the norms of the SNiP, sanitary, fire and other standards, he has the right to apply to the relevant authorized state bodies for the acceptance of the disputed structure into operation. And in case of disagreement with the decision of these bodies, he has the right to appeal to the court against the decision and action (inaction) of such an authority, and not by filing a claim for recognition of ownership of an unauthorized building.

The Law of July 15, 2011 "On Amendments and additions to certain legislative acts of the Republic of Kazakhstan on improving the licensing system" amended the Law on Architectural Activities, which entered into force on January 31, 2012. According to subparagraph 6) of paragraph 1 of Article 74 of the Law on Architectural Activity, if there is an appropriate decision of the structural divisions of the relevant local executive bodies performing functions in the field of architecture and urban planning, the owner (customer, investor, developer) has the right to independently commission completed individual residential buildings, as well as other buildings intended for personal use. citizens. The exception is facilities built in areas of increased seismic hazard or with other special geological (hydrogeological) or geotechnical conditions, as well as in other areas of special regulation that are subject to commissioning by acceptance commissions (subparagraph 5) of paragraph 2 of Article 76 of the Law). (From the author: Articles 76-78 of the Law on Architectural Activity are excluded in accordance with the Law of the Republic of Kazakhstan dated January 29, 2014 No. 269-V (effective January 1, 2016)).

By virtue of paragraph 12 of the regulatory decree of the Supreme Court "On Certain Issues of Dispute Resolution related to the Protection of Home Ownership", an unauthorized residential building located on an unlawfully occupied land plot and built without obtaining the necessary permits or in violation of urban planning and building regulations, the statute of limitations established by Article 240 of the Civil Code does not apply. It's spreading.

According to paragraph 23 of the regulatory decree of the Supreme Court "On certain issues of the application of inheritance legislation by courts", inheritance of real estate erected without permission (on a plot of land not allocated for these purposes, without obtaining the necessary building permits, etc.) can only take place in court. The notary has no right to issue a certificate for registration of ownership of such property in the name of the testator.

Due to the fact that an unauthorized building is not legally owned by the testator, it cannot be included in the estate. At the same time, this circumstance does not deprive the heirs who have accepted the inheritance of the right to demand recognition of their ownership of an unauthorized building (from the author: but not because of the statute of limitations).

According to paragraph 23 of the regulatory decree of the Supreme Court "On certain issues of the application of inheritance legislation by courts" for buildings located on a land plot owned by the testator on the right of ownership or permanent land use, but not put into operation, the notary has the right to issue a certificate to the heirs for the commissioning of this property on behalf of the testator.

Tsch. She filed a claim in the interests of the minor E. to the akimat and third parties for recognition of ownership rights based on the statute of limitations. The claim is motivated by the fact that after the death of her daughter's grandfather, V., in 1996, the plaintiff's daughter inherited the land plot belonging to him on the basis of a state act on the right of lifelong inherited ownership. On this site, the grandfather of the plaintiff's daughter and his sister D. built a dugout, and after its demolition in 1960, a house was built in two halves, one of which was owned and used by the plaintiff's daughter's grandfather, and the other half by D. The house building has not been completed or registered for V. On the basis of a notarized certificate of inheritance rights received on March 30, 2010 in the name of the plaintiff's daughter, according to the law, for non-property rights and obligations of the testator, the existence of which does not cease with death, documents were issued for the land plot in V. and on September 21, 2010 in the name of E. a certificate of the right to inheritance according to the law on the above-mentioned land plot, the right of ownership is registered, but the registration of ownership of housing construction is denied.

The court's decision denied the claim. The court pointed out that the procedure for the creation of rights to commission an erected structure on a land plot owned by a person, in this case E., is regulated by civil legislation and the norms of the Law on Architectural Activity. In this regard, the plaintiff has the right to formalize her rights to the disputed property by contacting the authorized state bodies on the issue of commissioning an unauthorized building.

In another case, B. filed a lawsuit against the State Institution "Akim's Office" for recognition of ownership of unauthorized buildings: a garden house, two sheds and a bathhouse. The claim is motivated by the fact that by the decision of the directorate and the trade union committee of the mining and metallurgical Institute, her brother V. was allocated a plot of land for the construction of a garden. My brother did not register ownership of the land, he died. She is the sole heir. In fact, she used the land, erected buildings on it, in particular, a garden house, two sheds and a bathhouse.

The court's ruling terminated the proceedings in this case. The court recommended that the plaintiff apply to a notary to issue a certificate for the commissioning of the inherited property on behalf of the testator and a certificate of the right to register ownership of the inherited property.

The developer has the right to appeal the decision of the authorized body on the refusal to accept the building into operation. If the decision is found to be unjustified, the court, in accordance with the first part of Article 282 of the CPC, makes a decision on the obligation of the relevant state body to eliminate in full the violation of the rights, freedoms and legally protected interests of the applicant.

The list of the main documents attached to the statement of claim

Documents in accordance with the requirements of Article 149 of the CPC, including documents confirming the circumstances on which the plaintiff bases his claims, which may include:

- evidence confirming the creation of a new real estate object, or in some cases, the absence of information about the registration of the object as real estate;

- a written document confirming the decision of the authorized local executive body on the subsequent provision of the land plot or the consent of the owner of the land plot;

- conclusion on compliance with regulatory requirements (restrictions, conditions) in the field of architecture, urban planning and construction, compliance of the facility with building codes and regulations, environmental requirements;

- evidence of compliance with sanitary, fire legislation and other mandatory norms and rules, security zone;

- evidence of compliance with the rights of other citizens or state and (or) public interests (for example: the absence of information about the provision of land to other persons, the absence of overlays with adjacent plots, statements by owners of nearby plots about the absence of claims, etc.).

- the report on the assessment of the object, etc.

Laws to be applied when considering and resolving a case

The Constitution.

GK.

The Land Code.

GPC.

Laws:

- "On architectural, urban planning and construction activities in the Republic of Kazakhstan";

- "On the administrative-territorial structure of the Republic of Kazakhstan";

- "On administrative procedures";

- "On local government and self-government in the Republic of Kazakhstan";

- dated November 3, 1994, No. 213-XIII "On Individual housing construction".

Regulatory decisions The Supreme Court:

- dated July 9, 1999, No. 10 "On certain issues of the application of legislation on the right of ownership of housing";

- No. 3 dated April 20, 2006 "On the practice of Judicial Review of Disputes on the right to housing abandoned by the owner";

- dated July 16, 2007 No. 5 "On some issues of dispute resolution related to the protection of the right of ownership of housing";

- No. 6 dated July 16, 2007 "On certain issues of the application of Land Legislation by Courts";

- No. 5 dated June 29, 2009 "On some issues of application of Inheritance Legislation by Courts"

Attention!   

       Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.  

 For more information,  please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085. 

Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office  Court Cases