Payment of the state fee of a legal entity upon recognition of ownership of an unauthorized building
A claim for recognition of the right to unauthorized construction is considered in a lawsuit, since the interested person applies for the protection of a violated or disputed right or legitimate interest by resolving a dispute about the right.
Paragraph 11 of the regulatory resolution "On certain issues of dispute resolution related to the protection of home Ownership" provides comprehensive explanations on this issue.
Thus, claims for recognition of the right to unauthorized construction are presented and considered by the courts in all cases in the claim proceedings.
When filing a claim for recognition of ownership of an unauthorized building by a legal entity, a state fee in the amount of 3% of the value of the property is payable. The market value of the property is determined at the time of filing a lawsuit.
So, LLP "D" appealed to the court with a claim for recognition of ownership of an unauthorized construction – a gas filling station located in the Tayynshinsky district of the North Kazakhstan region. The state fee was paid in the amount of 273 741.36 tenge. The case file contains a property valuation report No.01/11/12 dated December 20, 2020, according to which the cost of a gas filling station with a land plot is 27,374,136 tenge (the cost of the land plot is 90,000 tenge, owned by the partnership).
Thus, the plaintiff paid the state fee in the amount of 1% of the value of the property, instead of 3%. In addition, the court, in violation of subparagraph 11) of part 1 of Article 104 of the CPC, did not take into account that the assessment report dated December 20, 2020 did not confirm the market value of the property at the time of filing a claim with the court - October 27, 2021 (SMES of the North Kazakhstan Region).
The circle of persons involved in the case.
Claims for recognition of ownership of an unauthorized building are considered by the courts in the order of claim proceedings and submitted to the local executive body. The defendant in such cases should be the akims of the relevant administrative-territorial unit, who head the local executive body. Depending on the category of the dispute, such claims may be filed against the owner of the land plot or against the developer (the person who erected the unauthorized building)
It should be borne in mind that if the unauthorized construction was created by contractors, the defendant will be the customer as the person on whose instructions the unauthorized construction was carried out.
In each specific case, the composition of third parties whose participation is necessary for the correct resolution of the case is determined by the court by the content of the subject and the grounds for the plaintiff's claims, the defendant's objections and the laws to be applied.
It should be borne in mind that the decision taken in the case may affect the scope of the rights and obligations of these persons.
The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.
In paragraph 11 of the regulatory resolution "On certain issues of dispute resolution related to the protection of the right of ownership of housing", it is explained that a claim for recognition of ownership of an unauthorized dwelling is submitted to the local executive body.
The plaintiffs basically correctly indicated the defendant, and at the same time, there are lawsuits when claims for recognition of the right to unauthorized construction by the plaintiff are made against an improper defendant.
Article 50 of the CPC provides that in the event of a claim against an improper defendant, the court, in order to prepare the case for trial, explains to the plaintiff his right to apply for the replacement of an improper defendant with a proper one.
The replacement of an improper defendant is permissible at the request of the plaintiff himself, any other participant in the process, or at the initiative of the court, however, such a replacement is possible only with the consent of the plaintiff.
Jurisdiction
In accordance with part 1 of Article 31 of the CPC, claims for rights to land plots, buildings, premises, structures, other objects firmly connected with land (real estate) and others are filed at the location of these objects.
That is, disputes related to the recognition of ownership of an unauthorized building are considered at the location of the disputed real estate object. If one of the parties to the case is a citizen, then such claims are considered by the district courts.
In cases where the parties to the case are individuals engaged in individual entrepreneurial activity without forming a legal entity, and legal entities, the claim is subject to specialized economic courts in accordance with part 1 of Article 27 of the CPC.
When determining the jurisdiction of cases related to the application of the provisions of Article 244 of the Civil Code, the courts must take into account the subject composition of the parties to the dispute and the nature of legal relations in their entirety.
In order to become the object of relations regulated by Article 244 of the Civil Code, the construction carried out by a person must be unauthorized.
When accepting a claim for recognition of ownership of an arbitrarily erected non-residential premises, as well as a claim by an authorized body for the demolition of such a building, questions often arise about jurisdiction when the plaintiffs in the first case or the defendants in the second case are individuals who are not registered as an individual entrepreneur, however, the disputed real estate object is used or will be used for business purposes.
Thus, in the absence of state registration of an individual as an individual entrepreneur, a dispute with his participation is subordinated to a court of general jurisdiction.
The fact that the subject of the claim is an industrial premises that can be used for entrepreneurial activities does not affect the jurisdiction of the dispute, since the law does not restrict the rights of individuals to own any property, including non-residential/industrial premises.
Thus, in the above circumstances, there are no grounds for refusing to accept a claim for recognition of ownership or demolition of such an unauthorized building by a court of general jurisdiction.
State duty
In accordance with Article 607 of the Tax Code, the state duty is a mandatory payment levied for the commission of legally significant actions and (or) the issuance of documents by authorized state bodies or officials.
By virtue of Article 149 of the CPC, a document confirming payment of the state fee is attached to the statement of claim.
Subparagraph 11) of Part 1 of Article 104 of the CPC provides that in claims for ownership of immovable property, the price of the claim is determined by the market value of such objects in their locations on the day of the claim.
Civil law disputes over the ownership of unauthorized buildings relate to property requirements, respectively, subject to assessment. The disputed object is tangible and has a monetary value, therefore, its price is determined by market value.
According to subparagraph 1) of paragraph 1 of Article 610 of the Tax Code, unless otherwise established by this paragraph, state duty is charged on property-related claims: from individuals - 1 percent, from legal entities - 3 percent of the amount of the claim.
The state fee upon filing a claim for recognition of ownership of an unauthorized building is payable based on the value of the property with documents attached to the application on its market value (assessment report, information certificates on the market value of real estate).
The rules of part 1 of Article 109 of the CPC on the distribution of court costs with their award to the party in whose favor the decision was made do not apply to the category of cases on claims filed against a local executive body for recognition of ownership of an unauthorized building, and courts should not collect from local executive bodies in favor of plaintiffs the costs of paying state duty.
It should be assumed that the plaintiff has chosen judicial protection of his rights, despite the fact that the defendant in such cases does not violate the material rights of the plaintiff.
Earlier, the Supreme Court provided clarifications on this issue, including in the regulatory decree "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases."
These clarifications are reflected in the generalizations of the regions, which may indicate their widespread use in judicial practice and the absence of difficulties for the courts in this matter.
At the same time, there are cases when courts have accepted claims and considered cases without assessing the market value of a real estate object or if there is only a title page of the real estate valuation report, while its research part containing approaches and methods, description, technical and design characteristics and other information about the object of research in the materials There was no case.
The absence of a document confirming the market value of the erected object prevents the determination of the amount of the state fee to be paid when filing a claim.
Regulatory framework
The main normative legal acts regulating the recognition of the right to unauthorized construction and subject to application in the consideration of cases of this category are:
- The Constitution of the Republic of Kazakhstan; - The Civil Code of the Republic of Kazakhstan (hereinafter – the Civil Code); - The Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC);
- The Land Code of the Republic of Kazakhstan (hereinafter – the Land Code);
- The Law of the Republic of Kazakhstan "On Architectural, Urban Planning and Construction activities in the Republic of Kazakhstan" (hereinafter – the Law on Architecture);
- The Law of the Republic of Kazakhstan "On Local Public Administration in the Republic of Kazakhstan" (hereinafter – the Law on Local Government);
- The Code of the Republic of Kazakhstan on Administrative Offenses (hereinafter – the Administrative Code);
- The Code of the Republic of Kazakhstan "On Taxes and Other Mandatory Payments to the Budget" (Tax Code) (hereinafter – the Tax Code);
- Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of application of legislation on the right of ownership of housing" dated July 9, 1999 No. 10 (hereinafter – normative resolution "On certain issues of application of legislation on the right of ownership of housing");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain Issues of Dispute Resolution related to the Protection of Home Ownership" dated July 16, 2007 No. 5 (hereinafter referred to as the regulatory resolution "On Certain Issues of Dispute Resolution related to the protection of Home Ownership");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of application of land legislation by Courts" dated July 16, 2007 No. 6 (hereinafter referred to as the regulatory resolution "On certain issues of application of land legislation by courts");
- Normative Resolution of the Supreme Court of the Republic of Kazakhstan "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases" dated December 25, 2006 No. 9 (hereinafter – normative resolution "On the application by the courts of the Republic of Kazakhstan of legislation on court costs in civil cases");
- Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On certain issues of application of Inheritance Legislation by Courts" dated June 29, 2009 No. 5 (hereinafter referred to as the regulatory resolution "On certain issues of application of inheritance Legislation by Courts");
- Rules for the organization of construction and the passage of licensing procedures in the field of construction, approved by Order No. 750 of the Minister of National Economy of the Republic of Kazakhstan dated November 30, 2015 (hereinafter referred to as the Rules for the Organization of Construction)
- The SNiP of the Republic of Kazakhstan regulating relations in the field of architecture, urban planning and construction. When considering disputes, the normative legal acts in force at the time of the emergence of the relevant legal relations are subject to application.
Attention!
The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in is suitable for your .
For more information, contact a Advokat/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases disputes Defense Arbitration Law Company Kazakhstan Law Firm Court cases
