Recognition of actions to terminate the right of ownership as illegal on the compulsion to cancel the registration of termination
No. 6001-25-00-6ap/535ot on May 21, 2025
Plaintiff: T LLP (hereinafter referred to as the Partnership).
The defendants: NAO "Government for Citizens State Corporation" (hereinafter – NAO).
The subject of the dispute: on the recognition of actions to terminate ownership rights as illegal, on the compulsion to cancel the registration of termination of ownership of property and land plots,
Review of the plaintiff's cassation appeal
PLOT:
The case materials established that by a court decision dated September 4, 2023, movable and immovable property was claimed from the Partnership in favor of JSC N. K., which was acquired by the Partnership under purchase and sale agreements dated November 5, 2001, which was declared invalid by a court decision. This court decision has entered into legal force.
Part of the property specified in the court decision was transferred to JSC N. K., which is confirmed by the acts of acceptance and transfer of long-term assets. on April 2024, the Partnership" upon receipt on the portal
The "electronic government" of the certificate of absence/availability of property became aware that the NAO had registered the termination of the plaintiff's ownership of immovable property located in the region in the city of T., at the stations K., Sh., O., which, in the plaintiff's opinion, was not claimed by a court decision.
Having disagreed with the indicated actions of the defendant, the plaintiff appealed to the court with this claim.
Judicial acts:
1st instance: the claim was denied.
Appeal: the decision of the court of first instance remains unchanged.
Cassation: judicial acts in this case have been annulled. The Partnership's administrative claim against the NAO has been returned.
Conclusions: the plaintiff's arguments are based on the fact that the local courts, having incorrectly clarified the circumstances of the case, mistakenly concluded that the defendant had carried out the disputed actions as part of the execution of the court decision.
It is not taken into account that the introduction of changes to the legal cadastre is attributed to the exclusive competence of the defendant NAO, which is an administrative action arising from public law relations.
They did not take into account that the property indicated in the claim was not the subject of dispute. This property was built after 2001, including on land plots that did not have property owned by JSC N. K. The claims in question were not the subject of discussion in the civil case.
The local courts, rejecting the claim of the Partnership, concluded that the defendant had cancelled the entry in the registration sheet of the legal cadastre of objects transferred under the contract of sale dated November 5, 2001, pursuant to a court decision, respectively, the actions were committed within the competence of the registering authority and in accordance with the requirements of the provisions of the first part of Article 33 of the Law
"On the State Registration of Rights to Immovable Property" (hereinafter referred to as the Law).
However, the board considered these conclusions of the local courts to be erroneous, since the courts did not take into account the following circumstances when resolving the dispute on the merits.
Thus, the plaintiff disputes the defendant's actions to register the termination of ownership of the property. That is, he disputes the consequences of the execution of the above-mentioned court decision in the form of cancellation of entries in the legal cadastre.
As established in court, the relationship that has arisen is not based on administrative or other authority subordination or dependence of one party to the other.
According to part 2 of Article 102 of the CPC, the courts have jurisdiction in administrative proceedings over disputes arising from public law relations provided for by this Code.
From paragraph 22 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan No. 6 dated July 7, 2016 "On certain issues of invalidity of transactions and the application by courts of the consequences of their invalidity", it follows that in accordance with Article 33 of the Law of the Republic of Kazakhstan dated July 26, 2007 No.310-III "On State Registration of Rights to Immovable Property" cancellation entries in the registration sheet of the legal cadastre are carried out by the registering authority on the basis of a court decision that has entered into legal force. The presence of encumbrances should not prevent the execution of a judicial act declaring a transaction or other title document invalid.
According to the materials of the real estate registration files, the plaintiff registered the rights on the basis of transactions declared invalid by a court decision.
The cancellation of entries in the registration sheet of the legal cadastre in respect of real estate was made on the basis of a court decision that entered into force.
Thus, the contested actions of the defendant to revoke the registration of ownership of the property and coercion are related to the execution of the court decision that has entered into force.
In view of this, the board comes to the conclusion that no public relations have arisen between the defendant and the plaintiff, which exercise their authority by the administrative authority in relation to the plaintiff.
In accordance with part 1 of Article 4 of the CPC, an administrative act is a decision taken by an administrative body, an official in public relations, exercising the rights and obligations of a certain person or an individually defined circle of persons established by the laws of the Republic of Kazakhstan (subparagraph 4)); an administrative act (inaction) is an action (inaction) an administrative body, an official in public relations, which is not an administrative act (subparagraph 5)).
In this case, the subject of the dispute is an act or action (inaction) that denies, restricts, or terminates the rights of a participant in an administrative procedure.
certain responsibilities, as well as those that worsen his situation in other ways.
In accordance with article 3 of the Law, the state registration in the legal cadastre is subject to the emergence, modification and termination of rights (encumbrance of rights) to immovable property, as well as legal claims.
Neither the transfer, nor the encumbrance, nor the modification or termination of the right to immovable property may be registered in the legal cadastre until such right is registered in accordance with the procedure established by this Law.
By virtue of paragraph 1 of Article 33 of the Law, the cancellation of entries in the registration list of the legal cadastre is carried out by the registering authority on the basis of court acts that have entered into legal force. By Order No. 39N of the Minister of Digital Development, Innovation and Aerospace Industry of the Republic of Kazakhstan dated January 31, 2020, the register of public services was approved, which also provides for types of public services in relation to real estate.
This register does not provide for a type of public service in the form of restoration of cancellation of entries in the registration sheet of the legal cadastre. In particular, making entries in order to correct errors made in registration documents is regulated by the relevant Rules approved by the Order of the Acting Minister of Justice of the Republic of Kazakhstan dated August 24, 2007 No. 243.
The purpose of administrative justice is to verify the correctness and completeness of the administrative procedure in compliance with all successive stages, whereas in this case, the defendant did not initiate an administrative procedure.
The subject of the Partnership's appeal dated April 25, 2024 to the NAO is not the provision of one of the types of public services provided for by the specified order.
The circumstances of the case indicate that the defendant did not accept any administrative act in the form of refusal to provide public services, and no administrative action (inaction) was committed against the plaintiff, which does not give rise to a public legal dispute.
In such circumstances, the case is not subject to consideration in administrative proceedings, which, by virtue of subparagraph 11) of part 2 of Article 138 of the CPC, is the basis for issuing a ruling on the return of the claim.
In the circumstances described, the judicial board decided that the contested judicial acts of the local courts should be annulled, and the administrative claim should be returned.
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