On the Recovery of an Unauthorized Occupied Land Plot from State-Owned Land
On 17 January 2025, in case No. 7585-24-00-2/2435, the Naурызбай District Court of the City of Almaty, composed of Presiding Judge A.K. Kaparova, with S. Akhmetova acting as the court hearing secretary, examined, through the WhatsApp messenger, at an open court hearing, using audio and video recording equipment, in the Russian language, the following civil case:
PLAINTIFF: Akimat of the City of Almaty
DEFENDANT: Oak
PLAINTIFF’S CLAIMS: City of Almaty
THIRD PARTY NOT ASSERTING INDEPENDENT CLAIMS: Republican State Institution “Department of Land Resources Management of the City of Almaty of the Committee for Land Management of the Ministry of Agriculture of the Republic of Kazakhstan” (hereinafter referred to as the Department).
On the recovery of an unauthorized occupied land plot from state-owned land.
The land plot with cadastral number 20-322-029-056, located at: Apartment 2, Building 79, M.T. Street, Nauryzbay District, City of Almaty, is privately owned by the Defendant, Ooy A.K., on the basis of Sale and Purchase Agreement No. 1042 dated 1 November 2013 and Decision No. 9-59 of the Akim of Karasai District dated 25 September 2013.
During an inspection, the Republican State Institution “Department of Land Resources Management of the City of Almaty of the Committee for Land Management of the Ministry of Agriculture of the Republic of Kazakhstan” established that the Defendant was occupying, without title documents and without authorization, state-owned land adjoining her land plot, with a total area of 0.0030 hectares.
On 5 February 2024, State Inspector M. Bayuzakov issued Order No. 35 on the Elimination of Violations of the Requirements of the Land Legislation of the Republic of Kazakhstan, according to which the Defendant was required, within the period established by law, to eliminate the violation and vacate the state-owned land plot with a total area of 0.0030 hectares by dismantling the fence and permanent structures. The deadline for eliminating the violation was 6 March 2024.
The Plaintiff filed a claim with the court, stating that the Defendant had failed to fulfil her obligations to vacate the unauthorized occupied land plot.
The Plaintiff requests that the court recover from the Defendant the unauthorized occupied land plot, forming part of state-owned land, with an area of 0.0030 hectares, located at the above-mentioned address; and oblige the Defendant to bring the boundaries of the land plot located at the above-mentioned address into conformity with the identification document for the land plot by demolishing the fence and permanent structures at the Defendant’s expense.
The Defendant submitted a written response to the claim.
At the court hearing, the Plaintiff’s representative supported the claim on the grounds set out therein, provided the court with corresponding explanations, and requested that the claim be granted in full.
At the court hearing, the Defendant did not admit the claim on the grounds set out in her written response and requested that the claim be dismissed.
The representative of the third party, who had been duly notified of the time and place of the hearing, did not join the video conference and did not provide any reasons. The court examined the case in the representative’s absence.
In her opinion, the prosecutor considered that the claim should be granted.
REASONING PART:
Pursuant to Article 167 of the Land Code of the Republic of Kazakhstan (hereinafter referred to as the Land Code), disputes arising from land relations shall be considered in accordance with the procedure established by the laws of the Republic of Kazakhstan.
As follows from the case materials, a state inspector of the Department, on the basis of an inspection appointment act, conducted an examination of the Defendant’s land plots at the above-mentioned address. Following the inspection, it was established that the plots did not correspond to the boundaries indicated in the identification document and that the Defendant was occupying state-owned land with an area of 0.0030 hectares.
In accordance with subparagraph 6) of paragraph 1 of Article 148 of the Land Code, officials exercising state control over the use and protection of land have the right to issue binding orders to land plot owners and land users, as well as to officials of local executive bodies of regions, cities of republican significance, the capital, districts and cities of regional significance, the State Corporation, and akims of towns of district significance, settlements, villages and rural districts, requiring the elimination of violations of the requirements of the land legislation of the Republic of Kazakhstan.
An order to eliminate the violation dated 5 February 2024 was issued in respect of the Defendant, requiring her to vacate the state-owned land plot with an area of 0.0030 hectares by dismantling the fence and permanent structures by 6 March 2024. However, the Defendant failed to comply with the requirements of the order.
Paragraph 27 of Article 12 of the Land Code defines unauthorized occupation of a land plot as the occupation of another person’s land plot without the permission of the land plot owner or land user, as well as the occupation, without a corresponding decision of the Government of the Republic of Kazakhstan or a local executive body, of a land plot that is state-owned and has not been granted for land use.
In accordance with paragraph 10 of Article 43 of the Land Code, the use of a land plot is not permitted until its boundaries have been established on the ground and title documents have been issued, unless otherwise provided for in a decision granting the land plot adopted by the local executive body of a city of republican significance, the capital, a district or a city of regional significance, or by the akim of a town of district significance, settlement, village or rural district.
Failure to comply with this provision is classified as unauthorized occupation of a land plot and entails administrative liability in accordance with the legislation of the Republic of Kazakhstan on administrative offences.
Pursuant to paragraph 2 of Article 164-1 of the Land Code, the recovery of an unauthorized occupied land plot forming part of state-owned land that has not been granted for land use shall be carried out by local executive bodies at the location of the land plot.
An unlawful possessor is obliged to vacate an unauthorized occupied land plot within thirty calendar days from the date on which the penalties provided for by the legislation of the Republic of Kazakhstan on administrative offences are imposed, and to demolish, independently or at their own expense, any structure erected or being erected on such plot, except in cases provided for by the civil legislation of the Republic of Kazakhstan.
Disputes relating to an unlawful possessor’s failure to fulfil the obligation to vacate an unauthorized occupied land plot and demolish a structure erected or being erected on such plot shall be resolved through judicial proceedings.
Pursuant to paragraph 1 of Article 164-1 of the Land Code, the owner of a land plot or a land user shall have the right to recover their land plot from another person’s unlawful possession.
Pursuant to paragraphs 1 and 2 of Article 244 of the Civil Code of the Republic of Kazakhstan, an unauthorized construction means a residential house, other building, structure or other immovable property created on land belonging to the state that has not been formed into land plots, on a land plot that does not belong to the person who carried out the construction, or created without obtaining the permits required under 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 construction is subject to demolition by the person who carried it out or at that person’s expense.
The court established that the Defendant had unauthorizedly occupied a land plot from the state land fund and had erected a fence on it.
The Defendant was held administratively liable and an administrative fine was imposed on her, which the Defendant paid. The actions (decisions) of the authorized state body were not challenged in accordance with the procedure provided for by the Administrative Procedural and Process-Related Code of the Republic of Kazakhstan, were not declared unlawful, and the order has not been cancelled to date. Under these circumstances, the Defendant’s arguments that she had acquired the land plot with the fence already installed do not constitute grounds for dismissing the claim.
Based on the foregoing, the court considers that the claim is subject to satisfaction in full.
Pursuant to Part 1 of Article 117 of the Civil Procedure Code, the state duty from which the Plaintiff was exempted, as well as the costs associated with the proceedings, shall be recovered from the Defendant, who is not exempted from payment of court costs, in favour of the state, in full or in proportion to the portion of the claim granted.
Guided by Articles 223–226 of the Civil Procedure Code, the court
HAS DECIDED:
The claim of the Akimat of the City of Almaty shall be granted.
The unauthorized occupied land plot forming part of state-owned land, with an area of 0.0030 hectares, located at Apartment 2, Building 79, M.T. Street, Karagaily Microdistrict, Nauryzbay District, City of Almaty, shall be recovered from Ooy A.K.
Ooy A.K. shall be obliged to bring the boundaries of the land plot located at Apartment 2, Building 79, M.T. Street, Karagaily Microdistrict, Nauryzbay District, City of Almaty, with cadastral number 20-322-029-056, into conformity with the identification document for the land plot by demolishing the fence and permanent structures at the Defendant’s expense.
State duty in the amount of 3,932 (three thousand nine hundred and thirty-two) tenge shall be recovered from Ooy A.K. in favour of the state.
Note: The names and initials, case number, cadastral number, dates, legal provisions, and amounts have been retained as provided in the source text. The English translation preserves the structure and substance of the original. For official submission, it may be useful to verify the spelling of names and the court’s official English terminology against the original court decision.
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