On the return of illegally seized lands and the demolition of unauthorized buildings
When considering claims for the return of illegally seized lands and the demolition of unauthorized buildings, courts must take into account that unauthorized buildings are residential buildings, other buildings, structures or other immovable property created on land owned by the state that has not been converted into land, on land that does not belong to the person who carried out the construction, as well as those created without obtaining permits 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. Example. By the decision of the Enbekshikazakh district Court of December 28, 2015, the claim of G. to A. and Z. partially satisfied with the demolition of unauthorized buildings, it was decided: to oblige A. Demolish at your own expense the roof (slate, beams) of the annex to apartment No. 2, Z., demolish at your own expense the roof (slate, beams) of the annex to apartment No. 1, located at 317 Baibolova Street, Baydibek bi village, Enbekshikazakh district. The rest of the claim was denied. It was established that the parties live in an apartment building, while according to the conclusion of the AOF RSE "N" and the Department of Architecture and Urban Planning, the plaintiff's land plot with an area of 0.0632 hectares (apartment No. 4) is coordinated.
On the return of illegally seized lands and the demolition of unauthorized buildings
The defendants have not coordinated the land plots, and the previous owners of the plots are indicated in the state acts on the land plot. On the land plots where apartments No. 1 and No. 2 are located, the defendants erected extensions to an apartment building. At the same time, the defendants reconstructed the common roof without taking into account the load, which could lead to the collapse of the common roof, the entire structure or part of it. The erected coverings (roofs) of outbuildings without the consent of the authorized bodies and the plaintiff pose a threat to the life and health of the plaintiff and are subject to demolition, which is consistent with the provisions of paragraph 3 of Article 244 of the Civil Code. Thus, the court of appeal concluded that the unauthorized construction of the defendants violates the rights and legally protected interests of the plaintiff, and therefore the court's decision regarding the refusal to satisfy the requirements for the demolition of unauthorized buildings was canceled with a new decision in this part to satisfy the claim in full. As a rule, lawsuits for the demolition of illegal buildings and structures erected without obtaining permits in accordance with the procedure provided for by land legislation and legislation on architectural, urban planning and construction activities, and the imposition of duties on owners to use land plots for their intended purpose are filed with the courts of akimats, departments of land relations, departments of architecture and urban planning. The right of the above-mentioned authorized bodies to file lawsuits for the demolition of unauthorized buildings is controversial, given that state control over the targeted use of land is carried out by the authorized body for control over the use and protection of land, architectural and construction control is entrusted to the body of state architectural and construction control and supervision, which, in accordance with the Business Code, is entitled to carry out inspections and based on the results of the inspections, take appropriate response measures. In this regard, the question arises of the need to legislate for akimats, the Department of Land Relations, the Department of Architecture and Urban Planning to file a claim for the demolition of unauthorized buildings and structures erected without obtaining permits. The property right of a developer to unauthorized construction on a land plot that does not belong to him, with the exception of land owned by the state, may be recognized by a court with the consent of the owner of the land plot and payment of compensation to the latter, provided that the construction meets the requirements of the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities.
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