Protection of the Property of an Absent Person

📘 1. General Characteristics of the Rule

Article 29 of the Civil Code of the Republic of Kazakhstan (CC RK) defines the legal regime of the property of a citizen recognized as missing (under Article 28 CC RK). The main purpose of this article is the preservation, protection, and proper management of such person’s property until their possible return or recognition as deceased (Article 30 CC RK).

📌 Ownership rights remain with the absent person, while third parties (including dependents, creditors, and the state) are granted a legal opportunity to use part of this property for specific purposes, but only in a strictly regulated manner.

⚖️ 2. Conditions for Application

🔹 Article 29 applies under the following conditions:

🧾 3. Establishment of Guardianship over Property (Part 1)

Once a person is recognized as missing, the court obliges the guardianship and trusteeship authority to:

• establish guardianship over the property;
• appoint a guardian (see Article 130 CC RK, Articles 137–138 of the Family and Marriage Code of RK);
• ensure proper management and fulfillment of obligations on behalf of the absent person.

🛠 The guardian’s powers include:

• payment of taxes and utility bills;
• leasing of property (with the consent of the guardianship authority);
• support of dependents;
• protection of property from destruction or theft.

📌 All actions of the guardian are subject to control by the guardianship authority and must serve only the interests of the absent person.

👨‍👩‍👧 4. Support of Dependents

If the missing person had obligations to pay alimony or support children, parents, etc., these:

• remain in force;
• are fulfilled at the expense of their property — both current and accumulated debts;
• require permission from the guardianship authority if payments are long-term or large-scale.

📌 This applies, for example, when the missing person has children, a spouse, or elderly parents; disappearance does not release them from obligations.

💵 5. Repayment of Debts and Obligations

📑 Obligations subject to fulfillment include:

• taxes;
• fines;
• obligations under loan agreements;
• obligations under lease agreements, utility payments, etc.

📌 The guardian must notify creditors of the recognition of the citizen as missing and organize the performance of obligations within reasonable limits, preserving the core property.

🕒 6. Protection of Property before Expiration of One Year (Part 2)

✅ Part 2 provides for the possibility of early protection of property — before the one-year period since disappearance has expired, upon requests from interested parties.

📍 These may include:

• family members (spouse, children, parents);
• neighbors concerned about the condition of property;
• creditors;
• employers or other persons with interests connected to the property.

🛠 The guardianship authority may appoint a temporary guardian or another person to:

• protect the house, property, vehicles;
• maintain the property (e.g., leasing, security, repairs).

📌 This ensures preventive protection so that the property is not lost while awaiting a court procedure to declare the person missing.

📚 7. Related Legal Norms

📁 8. Examples from Judicial Practice

🔹 Example 1: Almaty, 2021The court recognized a man as missing. He had an apartment where minor children lived. His wife filed an application for funds for their maintenance. The guardianship authority appointed a guardian, and the court allowed part of the rental income from the apartment to be used for the children’s food, clothing, and education.

🔹 Example 2: Shymkent, 2023After a citizen’s disappearance, neighbors filed a request with the akimat, since the house was in an emergency condition. The guardianship authority appointed a temporary manager before one year had passed, who organized conservation of the house and its protection from intrusion.

🌍 9. International Standards

✅ Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR):

• Protocol No. 1, Article 1 — protection of property;
• States are obliged to take measures to protect the property interests of missing persons as long as they retain legal capacity.

✅ Recommendations of the Council of Europe on guardianship and trusteeship:

• Temporary guardianship may be established before a court decision if the property is at risk;
• The guardian’s actions must be proportionate and aligned with the interests of the absent person.

📌 10. Important to Consider

• The guardian has no right to dispose of property without special authorization from the guardianship authorities;
• All actions related to spending funds or transferring property for use must be documented;
• In case the missing person returns:
  • guardianship is terminated;
  • property and rights are restored;
  • the guardian may be held liable for abuses.

✅ 11. Conclusion

Article 29 of the CC RK performs a dual function:

• Preserves property and ensures its functioning in the absence of the owner;
• Protects the interests of third parties — dependents and creditors — without harming the rights of the missing person.

This rule is essential for maintaining legal order, especially in cases where the uncertainty about a person’s whereabouts may last for years.

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.  

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