Recognition of ownership of property in connection with the statute of limitations

 

Claims for recognition of ownership of immovable property in connection with the statute of limitations and other disputes on recognition of ownership of immovable property are filed with the courts at the location of the immovable property and are considered in the proceedings.

According to Article 240 of the Civil Code of the Republic of Kazakhstan, a citizen or a legal entity who is not the owner of the property, but in good faith, openly and continuously owning their own real estate for seven years, or other property for at least five years, acquires ownership of this property (statute of limitations).

The right of ownership to immovable and other property subject to state registration arises from the person who acquired this property by virtue of the statute of limitations, from the moment of such registration.

According to the statute of limitations, three conditions must be fulfilled in order to recognize ownership of immovable property:

-according to the statute of limitations, the party requesting recognition of ownership of the property is not the owner of the property;

- a person who owns real estate in good faith, openly and continuously as his own;

- a person has owned property for 10 years (3 years limitation period + 7 years according to art.240 Part 1 of the Civil Code of the Republic of Kazakhstan), or other property for at least 8 years (3 years limitation period + 5 years according to art.240 Part 1 of the Civil Code of the Republic of Kazakhstan).

When considering cases in this category, courts should examine evidence proving that the plaintiff owned the property in good faith, openly and continuously.

That is, the following circumstances may be used as evidence:

- the plaintiff and his family members have registered in the disputed house;

- the plaintiff paid all payments related to home improvement, including property tax and utility bills;

- the plaintiff acquired the property legally;

- the plaintiff does not hide the legitimate acquisition of the house from others (witness statements from neighbors);

- continuous ownership of property without transfer of ownership to third parties.

A citizen or a legal entity who refers to the limitation period of ownership may attach to their possession all the time during which the person whose legal successors they are owned the item. The limitation period begins from the moment of taking possession of the item. If the above circumstances are confirmed, a decision can be made to satisfy the claim.

If the seller of the property has died before filing a claim, then in such cases a claim is filed for recognition of ownership of the property.Such claims are filed at the location of the immovable property. The defendant is the local executive body authorized to manage the communal housing stock.

The legal capacity of a citizen arises at the moment of his birth and is terminated by death. Accordingly, when the buyer applies to the court, the property right of the former owner is considered terminated due to his death. If there are no legal successors or they have not applied to a notary office to obtain a certificate of inheritance, then the property is considered ownerless.

The organization of work on accounting, storage, evaluation, further use and sale of property that has entered communal ownership is carried out by a local executive body, their interests are also affected, therefore this body is indicated as the defendant.

Such transactions are considered completed, as long as the seller did not dispute the property and gave his consent. The transaction was completed, but the documents were not processed on time. The buyer has the right to demand recognition of ownership rights on the basis of art.259 of the Civil Code of the Republic of Kazakhstan in order to register ownership rights.

For example, the plaintiff T.I.'s statement of claim to the defendant, the Department of Agriculture of the Kapshagai city State Technical Inspectorate, for recognition of ownership of movable property, was denied by the decision of the Kapshagai District Court of the Almaty region dated 07/15/2015. The plaintiff asked to recognize ownership of the equipment purchased on 01.11.2008 from S.O. The defendant refused registration in the plaintiff's name due to the lack of title documents for the equipment. The court, having applied the statute of limitations, came to the conclusion that there is a different procedure for recognizing ownership rights in civil legislation for equipment and in this case is not subject to recognition.

By the decision of the Kokshetau City Court of the Akmola region dated 04/10/2015, the claim of the plaintiff K.K. to the defendants O.S., A.T., M.S. for recognition of ownership of the property in connection with the expiration of the limitation period of a quarter of the apartment was denied. According to the case file, it can be seen that on 28.02.2006, the plaintiff bought a quarter of apartment No. 8 of house No. 146 on Abaya Street in Kokshetau from V.R. The disputed apartment was the common property of the defendants on the basis of the apartment privatization agreement dated 28.10.1994. 1/4 of the apartment belonged to V.R. on the basis of a purchase and sale agreement dated 26.06.2003. The plaintiff, pointing out that the defendants had moved from the Republic of Kazakhstan and he had been living since 2006, conscientiously, openly and continuously owning property, asked the court to recognize ownership of one-third of the apartment according to the statute of limitations. The Court of first instance, applying art.240 Part 1 of the Civil Code of the Republic of Kazakhstan, since there are owners of a quarter of the apartment, based on the expiration of the statute of limitations, considered that part of the apartment is not subject to recognition of ownership.

Also, the above-mentioned court in the civil case on the recognition of ownership of immovable property under the statute of limitations, considered on 05.05.2015 the statement of claim of S.K. to the defendant akimat ofKokshetau on the recognition of ownership of room No. 305 of house No. 28a on Sain Street in Kokshetau, which has been owned since 11.11.1994, issued by Kazpost JSC was left without satisfaction. Since it was established in court that this room is an object of communal ownership on the basis of a decree of the akimat ofKokshetau dated 02.11.2012, operational management was given to the ownership of the State Institution "Kokshetau City Department of Housing and Communal Services, Passenger Transport and Highways", which was registered on 26.12.2006 in the Department of Justice of the city.Kokshetau. Due to the fact that the disputed room is the property of the state, the court, applying the statute of limitations, refused to recognize the plaintiff's ownership rights.

According to paragraph 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 home Ownership" for an unauthorized residential building located on an illegally occupied land plot and built without obtaining the necessary permits or in violation of urban planning and building regulations The statute of limitations established by art.240 of the Civil Code of the Republic of Kazakhstan does not apply.

 

 

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