Recognition of ownership of property | Statute of limitations on real estate

The court considered in open court a civil case on the claim of M.N.K. to G.E.L. THIRD PARTIES WHO DO NOT MAKE INDEPENDENT CLAIMS ON THE SUBJECT OF THE DISPUTE: A private notary of the Zhitikarinsky district, M.E.E.K.Yu.I., On the recognition of ownership of immovable property by statute of limitations. THE PLAINTIFF IN THE COUNTERCLAIM: G.E.L. THE DEFENDANT IN THE COUNTERCLAIM: M.N.K. On the recovery of property from someone else's illegal possession, On eviction. Plaintiff M.N.K. Plaintiff's representative Nigmetov S.D. Defendant G.E.L. Third party K.Yu.I. DESCRIPTIVE PART: According to the privatization agreement No. 6295 dated November 27, 1992 and the certificate of registered rights, the owners of real estate at the address: Kostanay region, Zhitikarinsky district, city of Zhitikara, microdistrict .., house 12, apartment 13, are K.T.M., K.E.L., K.I.L. The main claim: The plaintiff appealed to the court with a claim for recognition of ownership of immovable property under the statute of limitations. A response was received from the defendant about the disagreement with the plaintiff's claims. At the hearing, the plaintiff M.N.K., his representative Nigmetov S.D. the claims were supported, the court was told that in 2004 the plaintiff moved into an empty apartment with his family at the address: Gitikara, .. microdistrict, house ..., apartment 13, signed contracts for the provision of services with public utilities, then in 2005 he found the owner of the apartment, K.T.M., with whom he agreed to purchase this apartment. I gave her 10,000 tenge to apply for an apartment, as she said that there were problems with the documents. After that, K.T.M. she disappeared, reappeared in August 2007, asked for money for the apartment, the plaintiff handed over 70,000 tenge for the apartment, there is a receipt written in K.T.M.'s own hand, but the ownership could not be formalized.

 

I did not see K.T.M. after that, I found out that she lives in the village of Bredy, Russian Federation, I went there, but I did not find K.T. there. All this time, the plaintiff and his family have been living in this apartment, bearing the burden of its maintenance, and making repairs, since when he moved in, the apartment was in an uninhabitable condition. In May 2022, the plaintiff received a letter from G.E.L. demanding eviction, but until that time, no one had claimed his residence in the apartment. Indeed, in 2012, a woman came who introduced herself as a relative of K.T.M., who said that K.T. and her daughter died, and she asked for money for the apartment. G.E.L. herself appeared in 2022, said that she was the owner of the apartment. During the entire period of the plaintiff's stay in the specified apartment, no one has filed demands for his eviction from the apartment. The plaintiff did not take G.E.L.'s words seriously, as she came in a drunken state. They believe that M.N.K. owns real estate in good faith, openly and continuously, therefore they ask to satisfy the claim. The defendant G.E.L. did not admit the claim at the hearing, she explained to the court that, indeed, she had lived in an apartment at the address: ...., since childhood, together with her mother K.T.M. His mother and brother left Kazakhstan in 2000-2001, lived in the village of Bredy, Chelyabinsk region of the Russian Federation, and became citizens of the Russian Federation. She left for Russia in 2002. I left the apartment to my cousin's brother so that he could rent it to someone. In 2004, her mother told her that they wanted to buy an apartment, she did not object to the sale of the apartment in response, she told her mother that then she would need to get out of there. The receipt, which M.N.K. presented in court, was written by her mother, recognizes her mother's handwriting. But she did not say that her mother had sold the apartment, she only said that she had been given 50,000 tenge for paperwork. This issue was never discussed again. My brother died in 2008. When her mother died in 2013, she came to the city of Zhitikara, where she turned to the notary M.E.E. She said that she needed to bring the title documents to the apartment, and therefore applied to the registration authority to obtain the documents, but did not deal with this issue, went back to Russia, where she lived and worked. At that time, she did not have the money to pay the state fee for notary services. In the same year, 2013, she visited M.N., but he was not at home, his wife was there, who listened to her, then called her husband, who told her to leave. He didn't listen to her. Then she came in 2014, in 2017, but M.N.K. did not want to talk to her, did not open the door. She asked to pay her money for the apartment. To date, she has not received a certificate of inheritance under the law for this apartment, she is still processing the documents. He lives permanently in Chebarkul, Russian Federation. He believes that he is the owner of this apartment and M.N.K. illegally resides in it. Requests to dismiss the claim of M.N.K. A third person who does not make independent claims on the subject of the dispute, private notary M.E.E., did not join the court session. Earlier in the court session, M.E.E. explained that in 2013, K.(G.) E.L. applied to her to formalize the inheritance after the death of K.T.M.'s mother. K.T.M.'s death was registered in Bredy, Chelyabinsk region of the Russian Federation on May 18, 2013. She opened the inheritance case on October 7, 2013. In addition, an inheritance case was opened by the notary of the Breda district, T.F. Salishcheva, since there was another heir, K.T.M.'s granddaughter, K.Y.I., who was a minor at that time. The inherited property consisted of 1/3 of the share of the apartment at the address: g. Gitikara, ...., and the apartment at the address: S. Bredy, st. S., 2/5. In this regard, she sent a letter to the legal representative of K.Y.I.D.I.V. stating that she has the right to apply for a certificate of inheritance under the law. Neither G.E.L. nor K.Y.I. have received a certificate of inheritance until now. On September 19, 2022, G.E.L. contacted her through a proxy representative, and she was issued a certificate of the testator's non-property rights so that she could obtain title documents. G.E.L. did not address her again. The state fee for notary services currently amounts to KZT 12,252, i.e. 4 MCI. In 2013, the service fee was the same amount.

The heirs did not take measures to protect the inherited property, and no resolution was issued on the appointment of a manager of the inherited property. A third person who did not make independent claims on the subject of the dispute, Korsakova Yu.I., explained to the court that she was G.E.L.'s niece, and was the daughter of K.I.L. K.T.M., her grandmother, who died in 2013. My grandmother lived in the village of Bredy, Stantsionnaya str., house .... She and her mom lived at a different address. She was little when her parents divorced. My father died in 2008. After the death of her grandmother, she and G.E.L. inherited an apartment in the village of Bredy. She received a certificate of inheritance, but G.E.L. has not received it yet. When she was 14 years old, she received a letter from a notary from Kazakhstan that there was an inheritance in the form of a share of the apartment. He and his mother wrote an application to the notary for accepting the inheritance, came to Gitikara, but they had to process the documents, they did not do it, and decided to give up the inheritance. Currently, she does not claim a share in an apartment in the city of Gitikara. She remembers that G.E.L. told her that she went to Gitikara several times, but no one opened the apartment door for her. Counterclaim: G.E.L. she filed a counterclaim against M.N.K. for the recovery of property from someone else's illegal possession and eviction, arguing that according to the apartment privatization agreement, she is the owner of the residential premises at the address: g. g. g., ...., on the right of common shared ownership. Currently, the inheritance has been accepted by her, the inheritance case has been opened at the notary M.E.E. The state fee has simply not been paid, and therefore the right as an heir has not been registered with the registering authority. She is still registered in this apartment. M.N.K. He knew about the claims of third parties to the home, she repeatedly came to him, but he did not talk to her. She believes that the home was taken out of her possession against her will. At the hearing, the plaintiff in the counterclaim, G.E.L., supported the counterclaim, asked for the claim to be satisfied, to claim the residential premises at the address: g. Gitikara, ...., to evict M.N.K. and all persons living together with him. The defendant in the counterclaim, M.N.K., and his representative, S.D. Nigmetov. At the hearing, the counterclaims were not recognized, arguments were given that were identical to the arguments in the main claim, and they asked to dismiss the counterclaim. At the request of the main claim, According to Article 240 of the Civil Code of the Republic of Kazakhstan (hereinafter referred to as the Civil Code), a citizen or a legal entity that is not the owner of the property, but in good faith, openly and continuously owning their own immovable property for seven years, or other property for at least five years, acquires ownership of this property (statute of limitations). By virtue of paragraph 10 of the Regulatory Resolution of the Supreme Court of the Republic of Kazakhstan "On the practice of judicial review of disputes on the right to housing abandoned by the owner" dated April 20, 2006 No. 3 (hereinafter referred to as the Regulatory Resolution), when considering claims for the acquisition of ownership of housing on the basis of the statute of limitations, it is necessary to take into account the existence of a set of circumstances – good faith, open, continuous ownership of real estate as one's own. Good faith of ownership means that the person became the owner of the dwelling lawfully, that is, it appeared to this owner as a result of events and actions that are directly recognized by law, other legal acts, or do not contradict them, but have not received legal registration (for example, the transfer by the owner of the dwelling without observing the legally prescribed form of the contract of sale, lease Openness of ownership means that a person does not take any measures aimed at concealing the circumstances of home ownership, bears the burden of maintaining the home, and pays for utilities. Continuity of ownership means that the dwelling is in the possession of this person for the period prescribed by law, without transferring ownership to third parties. It has been established that M.N. has been living in the disputed apartment since 2004. In 2007, according to a receipt written by K.T.M., he bought this apartment for 70,000 tenge. Since moving in, he has been paying utilities regularly, without debt, as indicated by the relevant receipts, has not traveled anywhere, has not left his home, that is, he owns the home openly, continuously, and in good faith. At the same time, it does not take any measures aimed at concealing the circumstances of home ownership.

At the hearing, M.N.K. explained that, indeed, a woman who introduced herself as a relative of K.T.M. had come, who said that K.T. and her daughter had died, and asked for money for the apartment. G.E.L. herself appeared in 2022, said that she was the owner of the apartment. During the entire period of his stay in the specified apartment, no one has filed demands for his eviction from the apartment. G.E.L. did not take G.E.L.'s words seriously, as she came in a drunken state. G.E.L. explained to the court that her mother and brother had left Kazakhstan in 2000-2001 and lived in P. The Breds of the Chelyabinsk region of the Russian Federation, have taken Russian citizenship. She left for Russia in 2002. I left the apartment to my cousin's brother so that he could rent it to someone. In 2004, her mother told her that they wanted to buy an apartment, and in response, she did not object to the sale of the apartment. She did not say that her mother had sold the apartment, she only said that she had been given 50,000 tenge for paperwork. They did not return to this issue... In 2013, she came to M.N.K., but he did not talk to her, then she came to him in 2014, 2017, 2022, asking for money for an apartment. The Court to the arguments of G.E.L. It is critical in this part. Thus, G.E.L. confirmed in court that the receipt submitted by M.N.K. was written in her mother's handwriting. In addition to her words, the court examined the materials of the registration file for real estate at the address: g. Zhitikara, 6-12-13, submitted by the registering authority, where on the sheet of case No. 6 there is an application written by K.T.M. in 1992 - the handwriting in the receipt and the signature of K.T.M. are identical to the handwriting and signature in this application.L. She explained that she knew that her mother intended to sell the apartment, even said that she should get out of there, she did not discuss the terms of the apartment sale with her mother. She moved to Russia in 2002, and gave the apartment to her cousin so that he could rent it out to someone. However, she showed no interest in the apartment until her mother's death in 2013. Based on these statements, the court concludes that before her mother's death, G.E.L. was sure that the apartment had been sold by her mother. When I learned about the inheritance from a notary in 2013, I realized that I was still the owner, and I decided to issue inheritance rights. When asked by the court why she had not applied for M.N.K.'s eviction earlier, back in 2013, G.E.L. could not answer. All this time, since 2002, G.E.L., although she is a citizen of the Republic of Kazakhstan, has been living in the Russian Federation, where she has permanent residence. She was not interested in the fate of the home left in Kazakhstan, did not bear the burden of maintenance, and did not pay taxes. Thus, on the basis of Article 249 of the Civil Code, the right of ownership ceases when the owner alienates his property to other persons, the owner renounces the right of ownership, the death or destruction of property and the loss of ownership of property in other cases provided for by legislative acts. On the basis of Article 250 of the Civil Code, a citizen or a legal entity may renounce ownership of his property by declaring it verbally or in writing or by committing other actions (inaction) that clearly indicate his removal from possession, use and disposal of property without intending to retain any rights to this property. In accordance with paragraphs 3, 4 of the Normative Resolution, on the basis of Article 250 of the Civil Code, renunciation of ownership can be expressed by declaring it or committing other actions (inaction) that definitely indicate the removal of the owner from ownership without the intention to retain any rights to this dwelling. The commission by the owner of actions indicating the renunciation of ownership rights without the intention to retain any rights to this dwelling entails the termination of ownership rights only on the basis of a court decision that has entered into legal force on the acquisition of ownership of this dwelling by another person. It follows from M.N.K.'s explanations that he tried to formalize ownership of the apartment, but K.T.M. had problems with the documents and he gave her money for their registration. G.E.L. until now (after 9 years), she has not properly registered her inheritance rights, has not fulfilled her duties as an owner for the maintenance of property, for the payment of utility, tax and other mandatory payments, has not been interested in the fate of the property, that is, she has committed actions that definitely indicate her removal from possession, use and disposal of property without intent to preserve any rights to this property. This fact was confirmed by the relatives of G.E.L., P.S.P., P.O.V., who were questioned at the court session as witnesses. Both explained that after the Korsakovs' departure, the apartment stood ownerless, empty for a long time, then they heard that someone was living in the apartment, they thought that the akimat had given this apartment to people. As relatives, neither G.E.L. nor K.T.M. were told to look after the apartment, and they were not given money to maintain the apartment. When we came to Gitikara, we stayed with them as with relatives. In 2013, after the death of K.T.M., G.E. came and went to the apartment, no one opened it for her, she wanted to somehow negotiate with the tenants. The fact of M.N.K.'s long-term, open and continuous residence The neighbors Ivanov S.A. and U.B.S. confirmed at the hearing. Thus, witness Ivanov S.A. explained that he had been living at 6-12-7 since 2000. The apartment at the address .... was empty, was abandoned, there were not even doors. In 2004, M.N.K. came there, restored it, and has been living there with his family ever since. Witness U.B.S. explained to the court that she had been living at 6-12-6 since 1992. She doesn't remember exactly when, but Apartment No. 13 was abandoned for a long time, and the windows were broken. She doesn't remember who used to live there. In 2004, M.N. and his family moved into the apartment, and he has been living there ever since. Paragraph 6 of the Regulatory Decree stipulates that an abandoned (or abandoned) dwelling is a dwelling in respect of which the owner has not committed any actions indicating the intention to retain ownership. Such dwellings include empty dwellings left unattended by the owner and without performing maintenance duties, etc. In accordance with article 6 of the Constitution of the Republic of Kazakhstan, property obliges, and its use must simultaneously serve the public good. The specified apartment was registered as ownerless property, which is confirmed by information from the registration file, where there is an application from the akim of the district for registration of an apartment at the address: ... dated April 21, 2004, and then a statement from G.E.L. on de-registration 9 dated October 3, 2013, which indicates that the apartment was indeed abandoned by the owners, and in order to preserve it, it was registered with the local executive body. In view of the above, the court considers that in the present case there is a combination of circumstances – bona fide, open, continuous ownership of immovable property as one's own. Thus, the purpose of the statute of limitations is to return the actually abandoned property to civil circulation, including its proper maintenance, safe condition, payment of taxes, etc. Good faith suggests that taking possession was not illegal, committed by externally legitimate actions - that is, the actions of T.M. Korsakova. the transfer of real estate to M.N.K., as evidenced by the receipt, does not contradict the current legislation, but has not received proper legal registration. For a long period from 2013 to the present, G.E.L. had the opportunity to claim the disputed apartment, but she did not file lawsuits to protect her rights as the owner, simply did nothing. Moreover, from the testimony of G.E.L., given during the preparation of the case for trial, it follows that she did not intend to leave Russia for Kazakhstan, she only needed money from the sale of the apartment, and at the hearing she explained that due to the lack of work in Russia, she was going to return to Kazakhstan, live in her own the apartment.

 

The Court considers that the existence of the titular owner in itself does not exclude the possibility of acquiring ownership rights by another person due to the statute of limitations, and therefore the claim of M.N.K. must be satisfied. According to the requirements of the counterclaim In connection with the satisfaction of the claims of M.N.K. to G.E.L. on the recognition of ownership of immovable property by the statute of limitations, the counterclaim of G.E.L. to M.N.K. are subject to denial. According to article 109 of the Civil Procedure Code of the Republic of Kazakhstan, the court awards all expenses incurred in the case to the party in whose favor the decision was made. The plaintiff M.N.K. did not declare the recovery of court costs from Guliyenko E.L. at the court hearing. Guided by articles 223-226 of the Civil Procedure Code of the Republic of Kazakhstan, the court DECIDED: To satisfy the claim of M.N.K. to G.E.L. on recognition of ownership of immovable property by the statute of limitations. Recognize M.N.K. ownership of real estate at the address: Kostanay region, Zhitikarinsky district, city of Zhitikara, microdistrict .., house 12, apartment 13, according to the statute of limitations. To refuse to satisfy the counterclaims of G.E.L. to M.N.K. on the recovery of property from someone else's illegal possession and eviction. The decision is the basis for registration of ownership rights for M.N.K. with the registration authority.

 

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