Recognition of ownership of an unauthorized building

 The Zhitikarinsky district court of the Kostanay region, composed of the presiding judge Aizhanova Zh.N., with the secretary of the court session Uspanova A.K., considered in open court the civil case on the claim of: A.Zh.A. to the Akim of the Zhitikarinsky district, THIRD PARTIES WHO DO NOT MAKE INDEPENDENT CLAIMS ON THE SUBJECT OF THE DISPUTE: State Institution "Department of Land Relations of the Akimat of the Zhitikarinsky district" State Institution "Department of Construction, Architecture and Urban Planning of the Akimat of the Zhitikarinsky district" Branch of the non-profit Joint Stock Company "State Corporation "Government for Citizens" in Kostanay region, On recognition of ownership rights to unauthorized construction with the participation of a representative of the plaintiff Nigmetov S.D. A representative of a third party M.E.K. A.Zh.A. he is the owner of real estate at the address: g. Gitikara, .. microdistrict, house .., apartment 1 on the basis of a donation agreement dated January 16, 2014. 2 In 1975, her father A.A.I. built a garage not far from the house number .. in .. the neighborhood, however, did not register ownership of the garage. During his father's lifetime and to this day, the plaintiff uses the garage as his own. A.J.A. She appealed to the court with a claim for recognition of ownership of an unauthorized garage building, arguing that the documents confirming the issuance of a garage construction permit in 1975 had not been preserved, and there was no such information in the archive. The Department of construction, Architecture and urban planning of the akimat of the Zhitikarinsky district refused to put the garage into operation. The garage itself is located between two garages that belong to N.E.R. All three garages are operational, used for their needs. At the hearing, the plaintiff's representative, N.S.D. he clarified the claims, asked to recognize for A.J.A. the ownership right to an unauthorized building in the form of a garage with an area of 27.56 sq.m., located at the address: Kostanay region, Zhitikarinsky district, city of Zhitikara, microdistrict .., garage .., address code .... The representative of the defendant, N.A.S., did not connect to the court session via online communication for a reason unknown to the court, and was duly notified of the day and time of the case. Earlier, at the preliminary court hearing, N.A.S. acknowledged the claims. The representative of the third party of the State Institution "Department of Construction, Architecture and Urban Planning of the Akimat of the Zhitikarinsky district" M.E.K. acknowledged the claims at the hearing, explained to the court that, indeed, the plaintiff had applied to them in July 2022 with a statement about the commissioning of a garage built in 1975. The plaintiff was refused to put the garage into operation, since the garage is an unauthorized building and it is recommended to go to court. At the stage of consideration of the case, the plaintiff applied for the assignment of the garage address, in connection with which, by order of the Department of Construction, Architecture and Urban Planning of the Akimat of the Zhitikarinsky district No .. from .. On September 2022, the address was assigned: Kostanay region, Zhitikarinsky district, city of Zhitikara, microdistrict .., garage ... address code.... He does not object to the satisfaction of the claim.

Representatives of third parties: State Institution "Department of Land Relations of Akimat of Zhitikarinsky district", branch of the non-profit joint-stock company "State Corporation "Government for Citizens" in Kostanay region - they did not connect to the court session via online communication, asked to consider the case without their participation, provided feedback on the lawsuit, in which the State Institution "Department of Land Relations of the Akimat of the Zhitikarinsky district" indicated that after the court's decision on recognizing ownership of the unauthorized building, the plaintiff would be provided with a land plot for the placement of the building, and a branch of a non-profit The joint-stock company "Government for Citizens State Corporation" in Kostanay region leaves the decision to the discretion of the court. The court, in accordance with Article 196 of the Civil Procedure Code of the Republic of Kazakhstan (hereinafter referred to as the CPC), considered the case in the absence of these persons. By virtue of parts 1, 3 of Article 244 of the Civil Code of the Republic of Kazakhstan (hereinafter - Civil Code), unauthorized construction is an apartment building, other structure, structure or other immovable property created on land not formed into land plots owned by the state, on a land plot that does not belong to the person who carried out the construction, as well as created without obtaining permits required in accordance with the land legislation of the Republic of Kazakhstan, the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities in the Republic of Kazakhstan and other legislation of the Republic of Kazakhstan. The right of ownership to an unauthorized building may be recognized by a court for the person who carried out the construction on a land plot that does not belong to him, provided that this plot is provided to this person in accordance with the established procedure for the placement of the erected building.

Recognition of ownership of an unauthorized building

The court found that the garage at the address: Gitikara city, microdistrict .., garage .., ownership is not registered. The plaintiff's arguments about the unauthorized construction of a garage on a land plot not owned by the plaintiff, at the expense of her father's own funds, were confirmed at the hearing by witness N.E.L. Thus, witness N.E.L. explained to the court that in 1975 his father N.L.Sh., who lives at the address: g. Gitikara. .. microdistrict, house .., apartment 2, the chief architect of the city of Gitikar was granted permission to build a garage in .. After that, my father built a garage and registered ownership with the registration authority, and issued a technical passport for the garage. Next to his father's garage, A.A.I.'s garage was built wall to wall by A.J.A.'s father, and then another garage belonging to his family was completed on the other side of A.'s garage. Thus, A.'s garage is located between his two garages. All this time, he and his family have been using their garages, and the plaintiff's family has been using their garage. At the same time, electricity passes through the plaintiff's garage to his garages. The witness's testimony is documented: the case file contains a permit from the chief architect of g. Zhitikar for the construction of a garage in the 3a microdistrict, issued by N.L.Sh., a receipt for the receipt order No. 37 dated July 28, 1975 on payment for the allocation of a plot for a garage, a technical passport for a garage in the 3a microdistrict, house 12, compiled on July 25, 2007 by RSE "Center for Real Estate in Kostanay region". According to the technical conclusion of M-Arch LLP dated July 22, 2022, based on the results of the survey, it was established that the technical condition of the garage at the address: 3a Gitikara microdistrict is assessed as operable.

Further operation of the garage does not impair architectural, aesthetic, fire, explosion and sanitary qualities, does not have a harmful effect on the environment, does not reduce the estimated strength of existing structures, does not threaten human life and health. From the explanations of the representative of the Department of Construction, Architecture and urban planning of the Akimat of the Zhitikarinsky district Makanova E.K. It follows that the garage cannot be put into operation due to unauthorized construction on a land plot that does not belong to the plaintiff, and without permits, which are not subject to registration due to the completed construction of the facility. That is, the procedure for passing architectural and urban planning procedures in the form of obtaining an APZ or independent acceptance of an object into operation presupposes the right to a land plot that the plaintiff does not have. The building was erected on land not formed into land plots that does not belong to the plaintiff, without obtaining the permits required in accordance with the land legislation of the Republic of Kazakhstan, the legislation of the Republic of Kazakhstan on architectural, urban planning and construction activities in the Republic of Kazakhstan and other legislation of the Republic of Kazakhstan. From the response of the representative of the Department of Land Relations of the akimat of the Zhitikarinsky district, it follows that in case of recognition of ownership of an unauthorized object, the plaintiff will be provided with a land plot for the placement of the specified object in accordance with the land legislation of the Republic of Kazakhstan. In these circumstances, the court concludes that the stated claims are based on the law, do not violate the rights and legitimate interests of third parties, are confirmed by the case materials, and therefore are subject to satisfaction. Guided by articles 223-226 of the Civil Procedure Code of the Republic of Kazakhstan, the court DECIDED: To satisfy A.Zh.A.'s claim to the akim of the Zhitikarinsky district for recognition of ownership of an unauthorized building. To recognize for A.Zh.A the right of ownership to an unauthorized building in the form of a garage, with an area of 27.56 sq.m., located at the address: Kostanay region, Zhitikarinsky district, city of Zhitikara, microdistrict .., garage .., address code ....

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