Recognition of illegal actions to issue and register duplicate purchase and sale agreements for real estate

 

No. 6001-22-00-6ap/2628 dated 06/01/2023

Plaintiff: L.O.

Defendant: NAO "State Corporation "Government for Citizens"

Interested person: P.O.

The subject of the dispute is to declare illegal actions to issue and register duplicate purchase and sale agreements for real estate, to cancel entries in the registration sheet of the legal cadastre on registration of duplicate purchase and sale agreements

Review of the cassation appeal of the person concerned.

PLOT:

Since December 29, 2000, P.A. and R.N. were in a registered marriage.

After their death, an inheritance was opened for real estate in the form of four apartments.

On 13.08.2018, the notary of the city of D.F. certified with a certificate of the right of inheritance according to the law that the heirs of the property of R.N., who died on 17.05.2018, are in equal shares: her husband P.A., her daughter L.O.

Inheritance consists of non-property rights and obligations.

On December 29, 2021, the notary O.G. certified with a certificate of the right to inheritance that the heir to the property of P.A., who died on 10.10.2018, is the daughter of P.O. The hereditary property for which this certificate was issued consists of non-property rights and obligations.

The NAO issued P.O. duplicates of title documents for the above-mentioned real estate, since on 01/25/2022 she applied to them for duplicates, stating that the owners of the property, P.A. and R.N., had died and could not find the original documents.

Judicial acts:

1st instance: the claim is satisfied.

Appeal: the decision remains unchanged.

Cassation: judicial acts are upheld.

Conclusions:

By virtue of Article 36 of the Law of the Republic of Kazakhstan "On State Registration of Rights to Immovable Property" (hereinafter referred to as the Law), in cases of loss or damage of the original (certified copy) of the title deed to immovable property, on the basis of which registration was carried out in the legal cadastre, the restoration of the title deed is carried out by issuing a duplicate from a copy of the specified document, which is stored in the registration file. If there is only a paper copy of the electronic document in the registration file, a duplicate of the title document is issued by a notary.The issuance of a duplicate and the cancellation of the original of a lost or undamaged title document in the cases specified in paragraph 1 of this article shall be carried out in accordance with the procedure established by the authorized body.

By virtue of paragraphs 4, 5 of Article 22 of the Law, during the state registration of the occurrence, modification or termination of the right of common joint ownership, an application for registration may be submitted by all participants or only one of them with the consent of the other participants, certified by a notary. In case of state registration of the occurrence, modification, termination of the right of common shared ownership (other common law), the application for state registration must be submitted by all participants (authorized representatives).

By virtue of paragraph 3 of Chapter 2 of the Rules for Issuing a Duplicate and Canceling the Original of a Lost or Damaged Title Document, approved by Order No. 244 of the Acting Minister of Justice of the Republic of Kazakhstan dated August 24, 2007, when issuing a duplicate title document or certificate, the registering authority makes an appropriate entry on the cancellation of the original title document or certificate in the information system of the legal cadastre and in the appropriate columns of the registration sheet of the legal cadastre.

The local courts, satisfying the plaintiff's claims, concluded that the originals of the title documents were not lost or damaged, they were in the plaintiff's possession, which was known to the interested party.

It is also noted that for several years there have been court disputes between the parties regarding the rights to inheritance property that opened after the death of the testators.

These circumstances indicate that the Company, in violation of the above-mentioned norms of the Law and Rules, without the application of the second owner, issued duplicates of title documents to the interested party, as a result of which the originals of the title documents were annulled and the registration of the inheritance property was carried out, which has a dispute.

 

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