Recognition of ownership of an unauthorized house
In accordance with Article 244 of the Civil Code of the Republic of Kazakhstan, 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 Code. the 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
According to paragraphs 11, 12 of the regulatory resolution of the Supreme Court of the Republic of Kazakhstan dated July 16, 2007 No. 5 "On certain issues of dispute resolution related to the protection of ownership of housing", a claim for recognition of ownership of an unauthorized dwelling is filed with a local executive body and is considered by the court in the order of claim proceedings. Satisfaction of such a claim is possible provided that the preservation of the building does not violate the legitimate interests of others or endanger the life and health of citizens. These conditions must be confirmed by the authorities authorized to carry out state acceptance of completed construction projects.
When considering a claim for recognition of ownership of a residential building arbitrarily erected on a plot of land not allocated for these purposes, it can be satisfied only on condition that this plot is provided to the plaintiff in accordance with the procedure established by law.
In this regard, the judge, at the stage of preparing the case for trial, should invite the plaintiff to provide evidence that the land plot will be provided to him and that the building complies with urban planning and building regulations. Such evidence may include documents issued by the akim and authorized bodies confirming the consent of the provision of the land plot to the plaintiff and the compliance of the building with the norms and rules.
In these categories of cases, the courts have formed a common practice, claims were satisfied in cases where there was evidence that the plaintiff would be given a land plot in the future, the compliance of buildings with the norms and rules of architecture and construction.
As stated above, according to art.244 of the Civil Code of the Republic of Kazakhstan, 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.
For example, M.T.'s claim for recognition of ownership of an unauthorized house was dismissed by the decision of the Abai District Court of Shymkent, South Kazakhstan region, dated 16.07.2015. The plaintiff stated that in 2009, on the land plot No. 31 on Tauelsizdik Street, Akzhar district, Shymkent, he built a house in which he still lives, faithfully, openly and continuously owns and pays utility bills. During the consideration of the case, it was established that he was refused the grant of this land plot on the basis of the conclusion No. 17/93 dated 06/04/2015 of the Shymkent Land Commission. Also, in court, the plaintiff did not provide evidence to the court, that is, certificates certifying the right to use property from the Department of Justice, RSE NPTsem, documents on life safety from authorized fire extinguishing authorities, sanitary inspection stations, conclusions of the authorized body certifying the compliance of the residential building with construction standards, statements from neighbors that they have no claims. The case file does not contain a permit from the state body accepting the immovable property. Taking into account the above circumstances, the court dismissed the claim for recognition of ownership of the erected house, with a total volume of 141.61 m2, located on land No. 31 on Tauelsizdik Street, Akzhar district, Shymkent.
By the decision of the Tselinograd District Court of the Akmola region dated 04/16/2015, the claim of the plaintiff Zh.T. to the defendant, the akim of the aul district of Koyanda, for recognition of ownership of an unauthorized house was denied. A study of the case materials showed that the plaintiff owns land plot No. 228, located in mkr. 4 b of the village of Koyandy since 2012. To date, construction has been temporarily completed. The plaintiff claimed that he had acquired a plot of land from the Zhana Kadam public association. By the order of the aul district of Koyandy No. 16 dated 25.01.2012, the oralmans society for the construction of houses transferred to the public association "Zhana Kadam" the right of land use for a land plot located in the village of Koyandy for a period of 2 years. By the decision of the specialized interdistrict economic court of the Akmola region dated 04/22/2013, orders No. 16 and 18 of the akim of the aul district of Koyanda dated 01/25/2012 were declared illegal and canceled. In accordance with Article 43 of the Land Code, the plaintiff submitted an application for the grant of a land plot on May 15, 2014, which was registered with the local executive district on May 22, 2014, and sent for consideration to the land commission of the district institution for land relations.
On the basis of Protocol No. 10 dated 06/10/2014 of the Land Commission, the plaintiff's application was accepted for special registration on 10/07/2014. That is, at the moment, the application is under consideration, and no decision has been made on the issue of the land plot.
According to art.244, Part 3 of the Civil Code of the Republic of Kazakhstan, the right of ownership to an unauthorized building may be recognized by a court for a person who built 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.
The local executive body currently refuses to issue a land plot, in which case the court of first instance cannot make a decision, bearing in mind that the plaintiff did not provide the court with evidence of the compliance of the erected house with the laws of architecture and construction and concluded that the claim was dismissed.
However, it should be noted that in the absence of the owner of the property, that is, his death is considered as claims for recognition of ownership rights, and in the presence of the owner of the property - as claims for recognition of the transaction as valid.
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