Recognition as illegal and cancellation of the protocol decision of the housing commission
Violation of the principles of administrative procedures and administrative proceedings.
No. 6001-23-00-6ap/146 dated 06/22/2023
Plaintiff: K.N.
Respondent: RSU "Police Department of the Ministry of Internal Affairs of the Republic of Kazakhstan"
Interested persons: K.A., G.L.
The subject of the dispute: on the recognition of the illegal and cancellation of the protocol decision of the Housing Commission dated 11/26/2021 regarding the refusal to recognize those in need of housing, the obligation to adopt a favorable administrative act on recognition of those in need of housing and to appoint housing payments
Review of the defendant's cassation complaint
PLOT:
K.N. works in the Police Department as a sniper inspector for a special rapid response unit.
In the period from 02/12/2020 to 05/14/2021, he was paid compensation payments as a person in need of housing.
On 04/23/2021, the plaintiff purchased a 2-room apartment under a bank loan agreement. In order to ensure the fulfillment of obligations under the bank loan agreement, the plaintiff provided the apartment as collateral.
On 03.11.2021, the plaintiff filed a report with the housing commission of the respondent on recognizing himself as in need of housing. On 11/26/2021, the decision of the housing commission dismissed the application.
Judicial acts:
1st instance: the claim is satisfied.
Appeal: the decision remains unchanged.
Cassation: judicial acts are upheld.
Conclusions:
The courts, satisfying the claim, reasonably proceeded from the fact that the plaintiff had previously received housing from the state housing stock, and the housing he had acquired was mortgaged and was currently secured in a Bank.
In accordance with paragraph 1 of Article 101-3 of the Law of the Republic of Kazakhstan "On Housing Relations" (hereinafter referred to as the Law), employees of internal affairs bodies are recognized as needing housing in cases where:
They do not have a home by right of ownership in this locality.;
They do not have permanent use of a dwelling received from the state housing stock in this locality.;
the dwelling in which they live does not meet the established sanitary, epidemiological and technical requirements;
There are patients in the family who suffer from severe forms of some chronic diseases, in which it becomes impossible to live together in the same room (apartment).
By virtue of paragraph 1 of Article 101-11 of the Law, employees of internal affairs bodies shall exercise their right to housing from the date they are recognized as needing housing in accordance with the procedure established by this chapter by providing official housing or transferring housing payments to employees who fall under the category of officials of internal affairs bodies who are entitled to receive housing payments.
By virtue of the requirement of subparagraph 3) of Article 101-5 of the above-mentioned Law, the recipient of housing payments uses the money available in a personal special account on the basis of relevant agreements registered in accordance with the procedure established by the legislation of the Republic of Kazakhstan in order to repay the previously received mortgage loan (loan).
The plaintiff has the right to use housing payments to repay an earlier mortgage loan, since he has obligations under the mortgage loan.
Thus, the defendant's refusal to recognize him as in need of housing contradicts the requirements of article 101-5 of the Law.
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