Recognition of ownership of property by transactions of buyers made without observing the forms of the transaction
Regulatory and legal framework. In the Republic of Kazakhstan, the protection of property rights is regulated by the Constitution of the Republic of Kazakhstan (Articles 6, 25, 26), the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), the Land Code of the Republic of Kazakhstan, the Law of the Republic of Kazakhstan "On Housing Relations" No. 94 dated 04/16/1997, the Law of the Republic of Kazakhstan "On State Registration of Property Rights real estate" No. 310 dated 26.07.2007,
Normative resolutions of the Supreme Court of the Republic of Kazakhstan: No. 5 dated July 16, 2007 "On certain issues of dispute Resolution related to the protection of Home Ownership", No. 10 dated July 09, 1999 "On certain issues of the application of legislation on home ownership", No. 3 dated April 20, 2006 "On Practice Court review of disputes on the right to housing abandoned by the owner", No. 6 dated July 16, 2007 "On some issues of Application of Land Legislation by Courts", No. 8 dated December 25, 2006 "On some issues of application by courts of legislation on compulsory alienation of land plots for State needs".
Paragraph 3 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" states that in case of non-compliance with the form of the transaction, when the actual transaction is confirmed by evidence other than testimony (for example, a receipt for the sale of housing and upon receipt of money, or by issuing a power of attorney for the right of alienation), if the seller's location is unknown, the interested party has the right to apply to the court with a claim for recognition of the transaction as valid., with the indication of the seller as the defendant, notified by the court at his last known place of residence.
However, according to the decisions of the courts, it is clear that this rule of law is not always respected by the courts. There is no uniform practice in judicial practice regarding the fact that the plaintiff, instead of applying to the court with a claim for invalidation of the transaction, incorrectly files a claim for recognition of ownership rights in connection with the expiration of ownership of the property.
For example, by the decision of the Merke District Court of the Zhambyl region dated 05/22/2015, the statement of claim of the plaintiff A.E. to the defendant I.D. regarding the recognition of the purchase and sale of the house as valid was satisfied. It can be seen from the case file that on 02/15/1999, the plaintiff bought from the defendant house No. 1 on B-va street in the village of S-daev in the M district for 300,000 tenge. The defendant gave the plaintiff a written receipt for the money, the title documents of the house and the house itself in the possession of the plaintiff. Due to the lack of funds for registration of the transaction with a notary, the plaintiff postponed for some time. The plaintiff, along with family members, took on all the hardships from the day they owned the house. Then they could not issue documents for the house due to the uncertainty of the defendant's actual place of residence. The court of first instance considered the case without the defendant's participation in accordance with Part 1 of Article 135 of the CPC due to the uncertainty of the defendant's actual place of residence.
According to Part 2 of Article 154 of the Civil Code of the Republic of Kazakhstan, if a transaction requiring notarization is actually executed by the parties or one of the parties, its content does not contradict the law and does not violate the rights of third parties, the court, upon application of the interested party, has the right to recognize the transaction as valid. In this case, subsequent notarization of the transaction is not required.
In this case, the court of first instance issued a lawful and reasoned decision, recognizing as valid the purchase and sale of the house concluded between the parties, satisfying the claim in full, since the parties fully complied with the requirements of the purchase and sale transaction specified in art. 460 of the Civil Code of the Republic of Kazakhstan.
And by the decision of the Kokshetau City Court of the Akmola region on 05/14/2015, V.P.'s claim against the defendants A.S., N.S., V.S. for recognition of ownership of the apartment was satisfied, where the court did not take into account the above-mentioned legal requirements. The plaintiff bought apartment No. 2 at No. 5 Geologov Street in the village of Chaikino on 18.10.1997. Without completing the relevant documents, he lived in an apartment with his family. The case was considered without the participation of the defendants in accordance with Part 1 of Article 135 of the Civil Code of the Republic of Kazakhstan due to the uncertainty of the defendant's actual place of residence. The court recognized ownership of the apartment by applying the term of ownership with reference to Part 1 of Article 240 of the Civil Code of the Republic of Kazakhstan, because the plaintiff has owned the apartment in good faith, openly and continuously since 1997.
Also, by the decision of the Pavlodar District Court dated 02/20/2015, the claim of G.A. to the defendants to the akimat of Pavlodar V.G. for recognition of ownership of the land plot in connection with the statute of limitations was satisfied.
Plaintiff G.A. in 1996 bought a garage along with a plot of land located on the 3rd section of the railway district of Pavlodar. The defendant handed over to the plaintiff a written receipt for the amount for the garage. The plaintiff was unable to register the garage in his own name, as the defendant had left the Republic of Kazakhstan. The court recognized the ownership of the property due to the statute of limitations, referring to art.240 Part 1 of the Civil Code of the Republic of Kazakhstan.
In the last two cases, the courts immediately recognized ownership of the property, not taking into account that, according to the law, the court must recognize the concluded transaction between the parties as valid.
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