Petition for review of the decision of the district court and the decision of the judicial board
On July 13, 2022, the Judicial Board for Civil Cases of the Supreme Court of the Republic of Kazakhstan, consisting of: the chairman – chairman of the Board N.K., judges Sh., R., with the participation of plaintiffs P.A. and M.A. and their representatives D. and S.V., via mobile videoconference, having considered in open court the civil case on the claim of P.A., M.A. to N.Z. on the obligation to vacate land plots by demolishing buildings, received at the request of the plaintiffs' representative for a review of the District court's decision of November 22, 2021 and the decision of the judicial board for Civil Cases of March 16, 2022,
P.A., M.A. appealed to the court with the specified claim, arguing that the defendant, whose land plot is adjacent to their plots, erected outbuildings, some of which are located on their land plots.
By the decision of the district court of November 22, 2021, the claim was dismissed.
By the decision of the Judicial Board for Civil Cases dated March 16, 2022, the court's decision remained unchanged.
In the petition, the plaintiff's representative, P.A. – D., referring to the violation by the courts of the norms of procedural law, asks to cancel the contested judicial acts with the referral of the case for a new hearing to the court of first instance, as well as to consider the case in a remote online format.
The representative of the plaintiff M.A. – S.V., referring to the violation by the courts of the norms of procedural law, asks to cancel the contested judicial acts with a new decision on the satisfaction of the claim.
The defendant N.Z. informed in a telephone message that he would not participate in the cassation instance court hearing due to his state of health, and requested that the judicial acts in the case remain in force.
After hearing the explanations of the plaintiffs and their representatives who supported the arguments of the petition, having examined the materials of the civil case and the arguments of the petitions, the judicial board of the Supreme Court of the Republic of Kazakhstan (hereinafter referred to as the judicial board) comes to the following conclusions.
In accordance with part 5 of Article 438 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), the grounds for cassation review of judicial acts that have entered into force are significant violations of substantive and procedural law that led to the issuance of an illegal judicial act.
During the consideration of the case, such violations were committed by the courts.
It follows from the case file that the land plots of the parties are located in the Consumer Cooperative "Horticultural Association (hereinafter – PKST) "U" in the village of the rural district.
Plot No. 1, cadastral number 03-047-115-520, belongs to P.A. on the basis of the purchase agreement dated June 30, 2020, plot No. 7, cadastral number 03-047-115-518, belongs to M.A. on the basis of the purchase agreement dated November 1, 2016.
Plot No. 2, cadastral number 03-047-115-508, belongs to N.Z. on the basis of a purchase and sale agreement dated September 20, 2016.
It was established that the defendant's outbuildings are located along the boundaries of the plots, some of which enter the plaintiffs' plots, namely with an area of 0.0005 ha (5 sq.m.) on site No. 1 and 0.0023 ha (23 sq.m.) on site No. 7.
These circumstances are confirmed by the act of establishing the boundaries of the land plot on the ground dated December 14, 2020, and the reports on the assessment of the immovable property dated April 16, 2021, provided in support of the claims.
In addition, the court of first instance appointed a judicial land management examination in the case, the production of which was entrusted to the district department for Registration and Land cadastre of the branch of the non-profit joint-stock company State Corporation Government for Citizens.
In compliance with the court's ruling, a specialist of the State Corporation made measurements and determined a change in the configuration of the plots indicated in the situational scheme, such as the imposition of boundaries with an area of 0.0005 ha and 0.0023 ha.
At the same time, it can be seen from the situational scheme that there is no imposition of borders, but the seizure of land.
Thus, according to the title and identification documents, plot No. 2, owned by N.Z., has an area of 0.0700 ha, while in actual use it is 0.0758 ha.
Thus, during the trial, the seizure of parts of the plaintiffs' land plots occupied by buildings belonging to the defendant was reliably established.
In such circumstances, the conclusions of the local courts on the groundlessness of the claims with reference to the historically established boundaries of the land plots are unlawful.
Paragraph 8 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 6 "On certain issues of the application of land legislation by Courts" (hereinafter referred to as the regulatory resolution) clarifies issues of judicial practice concerning disputes between
owners of neighboring plots who are not their original owners, in the event that the boundaries of the land plots are established.
Thus, no boundaries have been established in this case, and accordingly, the principle of historically established boundaries is not applicable to dispute resolution.
In accordance with paragraph 5 of Article 188 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the right of ownership is indefinite. The right of ownership to property may be forcibly terminated only on the grounds provided for by the said Code.
In this regard, the conclusions of the local courts on the application of the statute of limitations and the termination of the plaintiffs' ownership rights to the disputed parts of the land plots due to the renunciation of ownership rights are untenable.
According to the rules of paragraph 2 of Article 244 of the Civil Code, the return of illegally seized land plots by demolishing buildings illegally erected on them is carried out by the person who carried them out, or at his expense. There are no exceptional circumstances limiting the application of this norm, listed in paragraphs 3 and 4 of Article 244 of the Civil Code.
Consequently, the protection of the rights of the owners of P.A. and M.A. can be carried out by releasing their land plots in the area established by the title documents and within the boundaries determined by the legal documents.
The Judicial Board considers that the conclusions of the local courts set out in the court rulings do not correspond to the circumstances of the case, and a violation of substantive law has been committed, which, by virtue of subparagraphs 3), 4) of part 1 of Article 427 of the CPC, entails the cancellation of the contested judicial acts.
Considering that the local courts have made mistakes in applying the rules of law and the case does not require the collection and additional verification of evidence, the judicial board considers it necessary to cancel the judicial acts contested in the petition with a new decision on the satisfaction of the claims made by the plaintiffs.
In accordance with Article 109 of the CPC, in connection with the satisfaction of the claim, all costs incurred by the plaintiffs are subject to award from the defendant. It can be seen from the case file that 321,324 tenge was found to be documented, of which 200,000 tenge is the cost of paying for the assistance of representatives. The receipt dated December 16, 2021 in the amount of KZT 215,000 is not subject to offset against expenses, as there is no seal impression and cash receipt.
Guided by subparagraph 8) of part 2 of Article 451 of the CPC, the judicial board DECIDED:
To cancel the decision of the district court of November 22, 2021 and the decision of the judicial board for civil cases of March 16, 2022.
To make a new decision on the satisfaction of the claims of P.A. and M.A. in the case.
Oblige N.Z.:
to vacate the land plot by demolishing outbuildings covering an area of 0.0005 hectares located on the land plot, cadastral number 03-047-115-520, owned by P.A., at the address district, PKST "U", plot 1;
to vacate the land plot by demolishing outbuildings covering an area of 0.0023 hectares, located on a land plot, cadastral number 03-047-115-518, owned by M.A., at the address district, PKST "U", plot 7.
To collect from N.Z. in favor of P.A. and M.A. 321,324 (three hundred and twenty-one thousand three hundred and twenty-four) tenge against reimbursement of court costs.
Partially satisfy the petition of the plaintiffs' representatives.
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
