Recognition of illegal actions to suspend and refuse state registration of ownership of an apartment
In accordance with the provisions of Article 14 of the Law of the Republic of Kazakhstan "On Housing Relations" (as amended on April 3, 1997), a member of a housing (housing and construction) cooperative who has paid the entire amount of the share contribution becomes the owner of the dwelling on June 30, 2021, No. 6001-21-00-3gp/255 N. I have filed a lawsuit against the non–profit joint stock company "Government for Citizens State Corporation" (hereinafter referred to as the NAO, corporation), represented by the Almaty branch, to declare illegal the actions to suspend and refuse state registration of ownership of an apartment located at the address: Almaty, Koktem-1 microdistrict, house 7, apartment 20; as well as the obligation to restore violated rights and legitimate interests for the state registration of ownership of the specified apartment. By the decision of the District court No. 2 of Almaly district of Almaty dated December 24, 2020, the application was partially satisfied.
The actions of the NAO to suspend and refuse state registration of the applicant's ownership of the named apartment were recognized as illegal. The corporation is responsible for the full elimination of violations, restoration of violated rights, freedoms and legitimate interests of the applicant. The rest of the application was denied. By the decision of the judicial Board for Civil Cases of the Almaty City Court dated April 7, 2021, the decision of the court of first instance was changed, regarding the satisfaction of the application, it was canceled with the adoption of a new decision on the refusal to satisfy the application. The rest of the decision of the court of first instance remains unchanged. The Judicial Board for Civil Cases of the Supreme Court overturned the decision of the appellate instance, upholding the decision of the court of first instance on the following grounds. It follows from the case file that on December 17, 1975, by the Alma Ata City Executive Committee, N. A warrant was issued for members of his two-person family to occupy a two-room apartment with a total area of 52.70 square meters, located at the above address. According to an extract from the decision of the general meeting of the Gorny Vozdukh housing cooperative (hereinafter referred to as the cooperative) dated April 15, 2004, it was decided to issue a certificate of ownership of the cooperative apartment in the name of N. From the certificate of the cooperative dated January 11, 2008, it follows that the applicant made a share payment for the apartment in the amount of 9,816 rubles (in 1976 prices) and full payment has been made.
Recognition of illegal actions to suspend and refuse state registration of ownership of an apartment
The cooperative does not have any claims for registration of the applicant's ownership of the apartment. On October 23, 2020, the applicant applied to the corporation for a certificate of ownership of the apartment. On October 27, 2020, the NAO suspended state registration due to the failure to submit the title document required for state registration on the basis of subparagraph 3) of paragraph 1 of Article 27 of the Law of the Republic of Kazakhstan "On State Registration of Rights to Immovable Property" (hereinafter referred to as the Law). A period of one month has been provided for the elimination of deficiencies. By notification dated November 27, 2020, the corporation refused state registration due to the applicant's failure to remedy the circumstances during the period of suspension of registration, which was the basis for its suspension, with reference to subparagraph 6) of paragraph 1 of Article 31 of the Law. The Court of First instance, partially satisfying the application, concluded that the actions of the NAO to suspend and refuse registration of the right with the issuance of a certificate did not comply with the provisions of the law, since in this case the applicant did not need to provide additional documents. The applicant has a document on the right of ownership and use of the apartment, with the right to renew the certificate of ownership of real estate. The appeals board did not agree with the conclusions of the court of first instance, arguing that the evidence indicating the construction and commissioning of the apartment at the expense of share contributions from cooperative members was not presented. The certificate of the cooperative dated January 11, 2008 cannot be proof of confirmation of full payment for the apartment.
The conclusions of the appellate judicial board are erroneous due to the following. In accordance with the provisions of article 14 of the Law of the Republic of Kazakhstan "On Housing Relations" (as amended on April 3, 1997), a member of a housing (housing and construction) cooperative who has paid the entire amount of the share contribution becomes the owner of the dwelling. The fact of full payment of the share contribution is confirmed by the documents issued by the cooperative. It follows from this that N. confirmed the existence of legal grounds for registering a home in his name. It has been established that the applicant has been living in this apartment for more than 45 years and is actually the owner of the apartment. No other persons applying for this housing have been identified. In addition, the applicant's housemates had registered the apartment on similar grounds, which the representative of the corporation did not deny at the hearing of the cassation instance. In this case, the actions of the corporation deprive the applicant of the opportunity to further register ownership of the apartment, the cost of which they have been paid in full. The decision of the court of first instance was overturned without taking into account these specific circumstances of the considered case.
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