Recognition of illegal resolutions on the provision of additional land and the act on the right of private ownership of the land

 

No. 6001-22-00-6ap/2521 dated 06.06.2023

Plaintiff: T.F.

The defendant: akim of the city

Interested person: N.L.

The subject of the dispute: on the recognition as illegal of the resolution of 17.06.2021 on the provision of N.L. additional land and the act on the right of private ownership of the land

Review of the plaintiff's cassation appeal.

PLOT:

According to the purchase and sale agreement dated 05/11/2005, the plaintiff is the owner of a country house with a land plot with a total area of 0.100 ha provided for gardening, located in the city.

By the decree of the akim of the city dated 02/10/2022, T.F. provided an additional land plot with a total area of 0.1588 hectares.

On 03/04/2022, T.F. registered ownership of an additional land plot.

N.L., according to the purchase and sale agreement dated 11/08/1998, is the owner of a land plot with a total area of 0.151 ha provided for horticulture located in the city.

By the decree of the akim of the city dated 06/17/2021 (hereinafter referred to as the contested resolution), N.L. was granted an additional land plot with a total area of 0.0262 hectares.

On 08/02/2021, N.L. registered ownership of an additional land plot.

Judicial acts:

1st instance: the claim was denied.

Appeal: the decision remains unchanged.

Cassation: judicial acts were annulled, a new decision was made to satisfy the claim.

Conclusions:

The local courts, rejecting the claim, argued that the negotiated resolution was adopted by the defendant in accordance with the competence and legislation of the Republic of Kazakhstan.

The judicial board disagreed with these conclusions of the local courts.

According to paragraphs 3-5 of Article 102, paragraph 7 of Article 62 of the Land Code, citizens of the Republic of Kazakhstan are provided with land plots from agricultural land, rural settlements and reserves for gardening, dacha construction and horticulture.

Citizens who own land plots for personal subsidiary farming, gardening and country house construction have the right, in the common interest, to form simple partnerships, horticultural or consumer cooperatives, the legal status of which is determined by the laws of the Republic of Kazakhstan.

In cases where land plots intended for gardening or suburban construction are in separate ownership of citizens of the Republic of Kazakhstan, and land plots and other property intended to meet the common needs of the owners of land plots are in their common shared ownership, the rules of the condominium apply to relations between owners connected by common property.

In garage, cottage and other consumer cooperatives, the rules on the condominium apply to the rights of participants in land plots that are in common ownership.

The contested resolution transferred to the ownership of N.L. a plot of land with an irrigation pipe, which is in use by both N.L. and the plaintiff.

In addition to the case materials, these circumstances are confirmed by the decision of the judicial board for civil cases of the regional court of 22.12.2022 issued in a civil case against N.L. to T.F. recognition of ownership of irrigation pipes.

According to the archival information examined by the court in this case, the plots of the parties are located on the territory of the horticultural society established by the decision of the executive committee of the City Council of People's Deputies dated 09/11/1989. In accordance with the aforementioned decision of the executive committee, land plots are assigned to the newly created society for spending 800 m2 per family and 20% of the total area for participants in the Great Patriotic War and pensioners, as well as for the construction of roads and driveways with a total area of 100 hectares, according to the copy. The court also established that the owners of plots No. 354 and No. 356 had been using the disputed irrigation pipe for more than forty years.

In accordance with paragraph 32 of Article 12 of the Land Code, a condominium is a special form of ownership (other right) to real estate, in which certain parts of real estate are in separate (individual) ownership (other right) of individuals and (or) legal entities, and those parts of real estate that are not in separate ownership, including land the land plot belongs to them on the basis of shared ownership (other common law) and is not separable from the ownership rights of real estate located in a separate (individual)ownership (other right).

In accordance with paragraphs 1, 2 of Article 62 of the Land Code, the local executive body of the capital, city of republican, regional significance and district, when registering a condominium, ensures that the land plot necessary for the placement, operation and maintenance of the condominium facility is included in the common property as an ideal share.

Such a share may not be allocated in kind (ideal share) unless otherwise provided for by this Code.

All owners have equal rights to use the common property of the condominium facility.

In accordance with paragraph 2 of Article 151 of the Land Code, participants in the land management process are the customer for land management, the developer of land management documentation, third parties whose rights and legitimate interests may be affected by land management, as well as government agencies and other persons who coordinate and approve land management documentation.It follows from subparagraph 3) of paragraph 3 of the said article that third parties, whose rights and legitimate interests may be affected during land management, have the right: to participate in the discussion of land management issues and receive information on the progress and results of land management affecting their interests; to appeal against illegal actions affecting their interests in the process of land management, in accordance with the legislation of the Republic of Kazakhstan.

Based on the above-mentioned provisions of the law and the circumstances of the dispute, the judicial board concluded that the irrigation pipe and the corresponding land plot under it are the common property of the garden society, the right of use of which is regulated by the rules on the condominium.

When making the contested ruling, the defendant did not take into account the rights of the plaintiff as an adjacent owner and participant of the condominium, which led to the issuance of an illegal administrative act and the transfer of separate ownership of the common property of the condominium to numerous

Due to litigation between the plaintiff and N.L., these violations committed by the administrative body were not eliminated even when the dispute was resolved in court.

 

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